Industrial Court of New South Wales CITATION: Ins Richard Mulder v Girotto Precast Pty Ltd. Prosecution under s 8(2) of the OH&S Act 2000 and Ins Richard Mulder v Giuseppe Girotto. Prosecution pursuant to s 26(1) and s 8(2) of the OH&S Act 2000 [2008] NSWIRComm 94 PROSECUTOR: Inspector Richard Mulder DEFENDANTS: Girotto Precast Pty Ltd PARTIES: and Giuseppe Girotto FILE NUMBER(S): IRC 151 and 152 of 2007 CORAM: Haylen J Occupational Health and Safety Act 2000 - s 8(2) s 26(1) - laying of precast floor planks by sub-contractor - use of temporary support - failure of temporary support - heavy floor planks fall killing principal sub-contractor and injuring three of his employees - inadequacy of temporary supports - insufficient plank end support - design fault in planks - pleas of guilty entered by corporate defendant and managing director - significant failures in safety system despite extensive existing safety system - remedial steps not difficult to take - serious breach established - early pleas - significant role for general and specific deterrence - numerous subjective factors considered - penalty imposed on corporate defendant - managing director seeks benefit of order under s 10 Sentencing Act - principles considered - no prior record - good industrial and community citizenship established - changing managerial role - managing director establishes hierarchy of senior managers to develop and maintain safety systems - director not truly hands on regarding safety - psychologist report raises issues about health and mental condition of director - death of sub-contractor and other deaths dwelt upon by director - s 10 application granted - director ordered to enter two year good behaviour bond. CATCHWORDS: Crimes (Sentencing Procedure) Act 1999 - s 10 - principles applicable in occupational health and safety prosecutions - director placed on two year good behaviour bond LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 The Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and anor (2001) 105 IR 348 WorkCover Authority of New South Wales (Inspector Hopkins v Profab Industries Pty Ltd (2000) 49 NSWLR 700 CASES CITED: Riley v Australian Grader Hire (2001) 103 IR 143 Inspector Downie v Menzies Property Services Pty Ltd (2004) 136 IR 449 Inspector Cooper v Quik-Seal Pty Ltd and anor [2006] NSWIRComm 48 Inspector Mayell v Claude Van Den Bruggen t/as Dolphin Antenna Service [2007 NSWIRComm 193 HEARING DATES: 29 April 2008 DATE OF JUDGMENT: 9 May 2008 PROSECUTOR: Mr R Reitano of counsel SOLICITORS: Mr W Steenson Legal Group LEGAL REPRESENTATIVES: WorkCover NSW DEFENDANTS: Mr B Hodgkinson SC and Mr M Shume of counsel SOLICITORS: Ms Natalie Shaw Gadens Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 9 May 2008 Matter No IRC 151 of 2007 INSPECTOR RICHARD MULDER v GIROTTO PRECAST PTY LTD Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 Matter No IRC 152 of 2007 INSPECTOR RICHARD MULDER v GIUSEPPE GIROTTO Prosecution pursuant to s 26(1) and s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 94 1 The Rhodes Bay Residential Development ("the Development") was a large scale residential construction situated at a site in Marquet Street Rhodes. In late May 2004, Baseline Constructions Pty Ltd ("Baseline") had entered into a contract for the construction of a number of multi-storey buildings on the site and ultimately Meinhardt (NSW) Pty Ltd ("Meinhardt") provided engineering consulting services to Baseline in relation to the development. Baseline entered into a number of sub-contract agreements for the provision of various works and services at the site, including the supply and manufacture of Hollowcore floor planks by Rescrete Industries Pty Ltd ("Rescrete") and the provision of tower cranage services by Marr Contracting Pty Ltd ("Marr"). In November 2004, Baseline also entered into a sub-contract agreement with Girotto Precast Pty Ltd ("Girotto Precast") requiring that company to supply pre-cast wall panels, co-ordinate the delivery of pre-cast wall panels, take delivery of Rescrete floor planks and erect the floor panels and floor planks. In late November 2004, Girotto Precast sub-contracted the erection of the wall panels and the floor planks to Hi-Rise Erections Pty Ltd ("Hi-Rise"). 2 On 8 February 2005, Hi-Rise were working with two erection crews and Mr Brendan Brown was in charge of an erection crew working on Levels 2 and 3 of B Block. On this day four planks were being laid and prior to that taking place, Hi-Rise employees had installed temporary support to the pre-cast walls, being supports supplied by Girotto Precast using Z brackets and timber. During the course of this work, Mr Brown and another employee, Greg Lee, saw an eastern "Z" bracket was askew and steps were taken to obtain a prop to provide support to the bracket. Prior to this occurring, a floor plank had not been able to be fitted and while arrangements were being made to cut it to size it had been placed over one or more of the already installed floor panels, as was normal with this type of construction. While Mr Brown was under the installed floor panels, those panels came away and fell. As a result of this accident, Mr Brown was fatally injured and three other workers received injuries through falling while working on the floor panels on the storey above where Mr Brown was working. As a result of this incident, the WorkCover Authority investigated the circumstances and in February 2007, proceedings were commenced against Girotto Precast for a breach of s 8(2) of the Occupational Health and Safety Act 2000 and separate proceedings were commenced against the managing director of that company, Giuseppe Girotto, alleging that, by the operation of s 26(1) of the Act, he was also in breach of s 8(2) of the Act. 3 The two prosecutions came before the Court on a number of occasions until an Amended Application for Order in each matter was filed in Court by the prosecutor. On the filing of those Amended Applications, the defendant in each matter entered a plea of guilty to the Amended Applications for Order as particularised. 4 In relation to Girotto Precast the allegation was that, on 8 February 2005 at Marquet Street Rhodes, the defendant failed to ensure that persons not in its employment and in particular Brendan Brown, Daniel Reeves, Glen Immer and Shane Banks were not exposed to risks to their health and safety arising from the conduct of the company's undertakings while they were at its place of work, contrary to s 8(2) of the Act. The particulars of the charge were: (a) the defendant was, at all material times, an employer; (b) the defendant was contracted to perform building and construction work at the site; (c) the defendant engaged sub-contractors to install and erect pre-cast concrete wall panels of floor planks, known as Hollowcore planks, at the site. (d) the defendant failed to provide and maintain a safe system of work for the installation and erection of floor planks MBG 55, MBG 51, MBG 52, MBG 53 and MBG 54S at the site in that it failed to: (i) provide an adequate safe work method for the erection of the identified floor planks; (ii) require the use of measures to ensure that the identified floor planks did not fall, (such as "catch structures"); (iii) identify the size of the timber supports to be used for supporting the identified floor planks; (iv) identify the extent to which the timber should overhang over the Z brackets; (v) ensure that the design plans were in accordance with the applicable Australian Standards; (vi) ensure that the design plans were followed and that the floor planks were built to applicable engineering requirements; (vii) ensure that the floor planks were adequate to carry construction loads, especially given the small bearing area at the southern end. It was alleged that as a result of some or all of the abovementioned omissions by the defendant, Brendan Brown was struck by a pre-cut concrete floor plank and killed and Daniel Reeves, Glenn Immer and Shane Banks were placed at risk of injury. The particulars of the breach alleged against Giuseppe Girotto were in the same form. This judgment deals with the evidence and submissions put forward by the parties at the hearing on sentence. 5 The evidence for the prosecution was contained within a folder of documents comprising of the following: (a) an Agreed Statement of Facts; (b) Prior Conviction Reports indicating that Girotto Precast Pty Ltd had one prior conviction and that Giuseppe Girotto had no prior convictions; (c) as ASIC company search for Girotto Precast Pty Ltd (d) a statement of Inspector Mulder dated 30 May 2006; (e) a statement of Inspector Waterhouse dated 1 November 2005; (f) a Factual Inspection Report of Inspector Mulder dated 11 February 2005 in relation to his visit to the site on 8 February 2005; (g) 38 colour photographs taken by Inspector Mulder on 8 February 2005 depicting the incident scene; (h) an engineering report entitled "Collapse of pre-cast floor, 10-16 Marquet Street Rhodes on 8 February 2005" prepared by Mr Chris Turner, B.E. on 20 March 2006; (i) Australian Standard AS 3610-1995 Formwork for concrete; (j) Australian Standard AS3610 Supp 2 - 1996 Formwork for concrete - Commentary (Supplement No 2 AS 3610 - 1995); (k) WorkCover Formwork Code of Practice 1998; (l) Deed of Novation between Statewide and Meinhardt; (m) Consultancy Agreement between Baseline, Statewide and Meinhardt; (n) The drawing M1677, B8, H specifically relating to the incident area revised 2.12.04; and (o) Prohibition Notice (7-76318) issued to Girotto Precast on 10 February 2005. The Agreed Statement of Facts (absent the annexures) appears as an annexure to this judgment. 6 For the defendants, the following material was relied upon: (a) an affidavit sworn by Nevin John Sweeney, the Occupational Health and Safety and Environment manager of Girotto Precast; (b) an affidavit sworn by Robert James Power, the general manager, NSW of Girotto Precast; (c) an affidavit of Giuseppe Girotto, the current executive director of Girotto Precast who was the managing director of the defendant company at the time of the incident; (d) an affidavit of Garry Donald Wyatt, director of Brown Consulting VIC Pty Ltd; (e) three personal references in relation to the case against Giuseppe Girotto; and (f) a psychologist's report prepared by Mr Laurence Fulton regarding Giuseppe Girotto; 7 In addition to the abovementioned material, the following matters were agreed during the course of proceedings: (a) the previous offence involving Girotto Precast was dealt with by the Chief Industrial Magistrate in April 2005 and involved the imposition of a penalty of $13,000 for a breach of s 8(2) of the Act. The offence involved a fall from a ladder of between three and five metres; (b) the following injuries were received by the other workers at the site on 8 February 2005: Mr Banks received an injury to the base of his right foot; Mr Reeves had a large lump on his foot, a large bruise on his back, pain in his spine and a sore neck; while Mr Immer broke his arm, three ribs and had a puncture wound to his right leg. 8 Mr Nevin Sweeney, at the time of the accident, was the Occupational Health and Safety and Environment manger of Girotto Precast and had been employed by that company since early May 2004. He had been involved in occupational health and safety work for nearly 20 years and had occupational health and safety related qualifications. He gave details of his work history and his involvement in occupational health and safety with other companies. He endorsed those parts of Mr Power's affidavit that dealt with his role and the safety systems at Girotto Precast. Mr Sweeney spoke of how he had been approached by Mr Power to take up a new national position of occupational health and safety manger with Girotto Precast and how he had satisfied himself that he was going to be working where management was committed to safety and was similarly committed to his own approach to safety. He was of the view that little could be achieved in safety unless there was commitment from management and he was not prepared to be employed in a position without that type of support. When interviewed for this position, he met Mr Girotto, the managing director of Girotto Precast, and other managers. He emphasised that, in taking up the position, it did not involve a salary increase but it was the nature of the position that attracted him. He spoke of being impressed with the commitment of Mr Girotto and Mr Power to safety and how that led him to want to be part of the team. They spoke of being committed to providing Girotto Precast and their sub-contractors with a state of the art occupational health and safety system. 9 On commencing with Girotto Precast, Mr Sweeney's initial impression, based on his previous occupational health and safety experience, was that the company was well run and had a number of safety systems in operation inter-mingled with their production system. Although there were a few environmental issues, they appeared to be under control and senior management demonstrated genuine interest in safety and expressed their keenness to improve and develop the company's current systems of work so as to include safety in a holistic manner. One of Mr Sweeney's first tasks was to conduct a comprehensive audit of all the company's production sites and this included an audit of the management systems, physical hazards and behavioural safety. The audit was concluded in May 2004 and his findings were presented to senior management. He recommended that the company should instruct him to implement an occupational health and safety improvement plan, including the introduction of occupational health and safety and environment policy and to set up two occupational health and safety systems built on risk management principles for the company's production facilities and the construction/sub-contractors' area of the company. After distribution and discussion by senior management, the recommendations were accepted. He was directed to draft documents for discussion and after discussion and adoption, he began to implement the plans. 10 Mr Sweeney then reviewed the occupational health and safety management system for Girotto Precast in New South Wales and those applicable to the erection and post-erection sub-contractors engaged by the company. This led to Mr Sweeney recommending an update of some of the occupational health and safety documentation, a consolidation of procedures in the occupational health and safety management system, the inclusion of additional procedures and processes in that system and a review to make all procedures consistent under the system. These recommendations were accepted by Mr Girotto and Mr Power and were implemented. 11 Mr Girotto then approved of Mr Sweeney and Mr Power refining the existing audit documentation that had been originally developed by Mr Power. Improvements to that audit system were applicable to sub-contractors engaged by Girotto Precast. In approximately July 2004, following Mr Sweeney's review, Girotto Precast implemented its occupational health and safety and environment policy nationally. Mr Girotto and Mr Power familiarised themselves with their policy and endorsed it. Mr Girotto signed the front of the policy stating his commitment to occupational health and safety and endorsed the objectives of the policy and the statement of responsibility. Mr Girotto also publicly declared his support for the policy by introducing it to all personnel in tool-box talks at each of the factory sites. Mr Sweeney regarded Mr Girotto and Mr Power as demonstrating a genuine commitment to occupational health and safety in a variety of ways. They were interested and supported recommendations that he had made on review of the company's systems, had promptly approved budgetary needs to implement the recommendations and had appeared at presentations seeking to promote safety. They had made it clear to Mr Sweeney that there was no financial limit to occupational health and safety improvements and that at all times senior management, including themselves, would be available to address and promote occupational health and safety interest. 12 In or about November 2004, Mr Sweeney recalled a conversation with Mr Nelson Monica of Baseline and its occupational health and safety manager. Mr Sweeney was carrying out an inspection at the Rhodes site and they were speaking about the safe work method statements that had been produced by Mr Brown in consultation with Mr Sweeney. Mr Monica had indicated that Mr Chris Henson of WorkCover had reviewed the safe work method statements and considered them to be "okay". In early January 2005, prior to the accident, Mr Sweeney was asked to attend a meeting at the Rhodes site in order to have discussions with Mr Chris Henson, the senior construction inspector with WorkCover. Mr Henson wanted to discuss the requirement for Hi-Rise personnel to wear harnesses when working at heights. Mr Sweeney recalled that the discussions were held in the office of Baseline's site manager, Mr Ray Humphrey. Mr Humphrey was present for part of the conversation and it was possible that Mr Monica was also present during part of the conversation. During this discussion, Mr Henson said that he saw no problems with the safe work method statements but the question was whether or not they were being enforced. Mr Sweeney was told to enforce the use of harnesses. After that discussion, Mr Henson and Mr Sweeney and possibly Mr Humphrey and Mr Monica inspected the work being performed at the site. Mr Sweeney had a further discussion with Mr Henson where Mr Henson said that he was happy with the way in which the work was being performed but they should conduct toolbox talks and reinforce the importance of using safety harnesses. In compliance with those suggestions made by Mr Henson, a toolbox talk was held on 19 January 2005 during which the men were addressed on the safe way of working at heights and the use of safety harnesses. In relation to both these occasions, Mr Sweeney spoke to Mr Power and informed him of what had been discussed. 13 Mr Sweeney then dealt with the differences between the construction and production sites of Girotto Precast. The manufacturing of panels on site, being the production side of the business, involved developing systems and procedures, audits and inspections, developing and conducting training programmes, providing advice to managers and also arranging external training programmes. Mr Sweeney was responsible for liaising through the organisation on occupational health and safety and environmental matters and the duties in relation to the production were carried out in Sydney, Newcastle and Dandenong. In relation to construction, namely the erection on site, he conducted audits on site, developed and conducted training with the companies own construction people and its sub-contractors and liaised with builders on safety matters. He assisted the company's sub-contractors by helping them develop safety related documentation. 14 It was Mr Sweeney's view that Mr Girotto had demonstrated a genuine and thorough commitment to safety in the workplace and had supported him in all facets of his position. He expressed the view that it would send a "wrong message" to persons in the industry to convict Mr Girotto. 15 Mr Robert Power was the general manager, New South Wales of Girotto Precast at the time of the incident and had been involved in the pre-cast concrete industry for over 20 years. Mr Power gave details of the company history, which had been in operation for approximately 20 years having been incorporated in Victoria in early 1989. Girotto Precast had commenced as a family business in 1987 in Melbourne with its first manufacturing plant being built in Dandenong, followed some 10 years later by a manufacturing facility built at Prestons, New South Wales. Mr Power spoke of Girotto Precast as being recognised as a market leader in Melbourne and that it had quickly established the same reputation in Sydney for excellence in product and service. In November 2003, the company further expanded its operations by establishing a Newcastle facility and in 2005, a facility was established in Brisbane. At the time of the accident, the directors of Girotto Precast were Steven Girotto, John Matheson Douglas, Keith Allan Mitchellville and Giuseppe Girotto. Giuseppe Girotto was the managing director, Steven Girotto was the technical director and Mr Douglas and Mitchellville were non-executive directors. 16 At the time of accident, the company's management structure revolved around the three offices in Melbourne, Sydney and Newcastle. This structure provided for two general managers, a finance manager and an operations development manager. As general manager New South Wales, Mr Power had responsibilities for the Sydney and Newcastle offices and the other general manager was located in the Melbourne office. As the general manager New South Wales, Mr Power was the person who had overall responsibility for all works being performed by Girotto Precast in New South Wales and was the person who had the operational day-to-day carriage of the business in New South Wales. Prior to the accident, the company had sold a major shareholding and as a result, Mr Douglas and Mr Mitchellville were appointed as new directors and Mr Giuseppe Girotto and Mr Steven Girotto moved out of the day-to-day running of the business. Mr Giuseppe Girotto was given the primary responsibility of expanding the business and Mr Steven Girotto was given responsibility for improving the technical operational manufacturing side of the business. In New South Wales, the company employed two construction co-ordinators to provide direct communication with the company's clients and sub-contractors involved in construction site activities. While the company employed approximately 175 people throughout Australia with 79 located in New South Wales, at the time of the incident approximately 125 people were employed throughout Australia with 67 being located in New South Wales. 17 Mr Power had approached Mr Girotto after commencing employment with the company about the need to further develop the company's occupational health and safety systems, initially employing an occupational health and safety and environmental manager. In early 2004, the company employed Mr Sweeney in that role on a national basis. 18 In relation to the work being performed at the time of the accident, Recrete manufactured the Hollowcore floor planks and Girotto Precast did not manufacture them. The majority of Girotto Precast activities were related to manufacturing through its plants. The factory premises housed the plant and equipment required for the production of precast concrete wall panels, a process described as labour intensive. Mr Power spoke about the way in which the manufacturing of wall panels was undertaken and noted that the construction division of the business was a small component of the overall business. Erection work in New South Wales and Queensland was performed by sub-contractors specialising in pre-cast erection. In Victoria, Girotto Precast employed a crew to perform this work. In New South Wales, almost all of the company's employees worked at the various factory premises in the manufacturing process with approximately seven employees visiting construction sites. Persons generally involved in this type of work were the company's construction manager, project manager, construction co-coordinator, occupational health and safety and environment manager and an occupational health and safety officer. The company was currently seeking to recruit a person for the position of occupational health and safety co-ordinator. 19 In his affidavit evidence, Mr Power provided details of the company's management system and its safety system. That evidence was supported by reference to a large number of documents annexed to his affidavit. The management policies manual contained all policies and procedures for employees, including safety policy, alcohol policy, visitors on site policy and certificates of competency. All employees were given induction training on the commencement of their employment. In November 2003, the company engaged an ex-WorkCover Inspector to address sub-contractors used by Girotto Precast as to their occupational health and safety obligations. Mr Brown was one of those who attended the training that was addressed by not only the ex-WorkCover Inspector, but also by Mr Power. Shortly after Mr Sweeney was employed he commenced a review to improve the subby pack and in mid-2004, Girotto Precast developed a corporate policy on occupational health and safety and environmental issues. The then managing director presented these policies at each of the work sites operated by Girotto Precast and in mid-2005, the policy was reviewed and updated. In late 2004, the occupational health and safety committee at each of the company's factory sites was asked to participate in the development of a site specific policy and that process was assisted by the occupational health and safety and environment manager and Mr Power. The finalised site specific safety policies were formally launched in January 2005 and had since been reviewed and relaunched. 20 In October/November 2004, the occupational health and safety and environment manager held two compulsory training sessions for managers and supervisors dealing with their obligations and responsibilities under the Occupational Health and Safety Act and Regulation. Also in November 2004, the occupational health and safety manager reviewed the documents concerning the company's construction and on-site safety systems. The company had an internal procedure for reviewing its plant procedures and performance in relation to safety compliance including yearly audits since 2004, audits of sub-contractors at various construction sites from 2004 occurring on average every three to four weeks, a physical hazard audit by the safety manager of each factory site in 2005 or 2006, behavioural safety audits in relation to individuals commencing in May 2006 and occurring on average every five to six weeks, a survey of all employees relating to the safety culture of each factory in 2006 and 2007, an audit of the New South Wales and Victorian production and erection divisions against the Victorian and Precast Industry Standard in 2007 and electrical audits of the company's factory sites in 2008. The management of the company had reviewed these audits for a series of safety improvement plans, and the plans were reviewed through the safety committee and at management meetings on a regular basis. 21 Mr Power then gave details of the procedures governing safety within the company, the fostering of a culture of safety in the company, the operation of the occupational health and safety committee and how the comprehensive induction system operated. In 2005, an annual re-induction programme had been introduced for all employees and on each construction site a principal contractor was required to perform a site induction that was attended by the company's construction site employees, its sub-contractors and their employees. In 2007, the company introduced its own construction sub-contractor induction performed by the occupational health and safety and environment manager and the safety officer. In 2007, the company had introduced sub-contractor briefing meetings that occurred prior to the sub-contractor commencing work on a construction site. 22 A detailed description was provided of the communication within the company, including the quarterly system of board meetings where safety was the first issue discussed, national management meetings convened monthly, site operation meetings held weekly in both Sydney and Newcastle, job assessment meetings held before the commencement of a new job, tool-box talks for production held weekly by the production supervisory personnel and tool-box talks held on construction sites by the sub-contractor. A description was also given of the means of reporting within the company on safety matters at the board level, at national management meetings and at site operation meetings. Each year a training needs analysis was conducted in relation to employees and a training plan developed. Training programmes had been provided to sub-contractors and their employees to ensure that they remained aware of, and were able to deal with, hazards and risks in the workplace. The occupational health and safety and environment manager, the two safety co-ordinators and the safety officer were employed on a full-time basis while safety responsibilities were also exercised by the national general manager, general managers, technical manager, senior technology manager, national projects manager, production managers, production supervisors, production foremen, production leading hands, production managers, construction managers, construction co-ordinators, construction foremen (Melbourne only) and construction leading hands (Melbourne only). There was ongoing review of the need for additional dedicated occupational health and safety personnel. In 2005, in consultation with its employees and the safety committee, the company documented a list of safety rules applying to the manufacturing sites. Employees in the factory not abiding by the rules were subject to disciplinary action, including verbal warnings followed by three written warnings with the third warning raising the possibility of dismissal. 23 A great deal of background information was supplied by Mr Power as to how the company became involved in the project at Rhodes. In mid-May 2004, the company received a document entitled "Precast concrete panel specification prepared for Rhodes Development for Statewide Developments Ltd", a document prepared by Meinhardt. It was said that this document was based on Australian Standard 3610 formwork for concrete, together with other Australian Standards and included the qualifications required for the pre-caster and erector. Later in May 2004, Baseline had entered into a contract with Statewide Developments Pty Ltd ("Statewide") for the construction of a large scale residential project known as "The Rhodes Bay Residential Development". In mid-September 2004, Meinhardt entered a consultancy agreement with Statewide. Also in mid-September 2004, Baseline entered a deed of novation with Statewide and as a consequence, Meinhardt's contractual obligation previously owed to Statewide were novated to Baseline. During 2004, Girotto Precast was approached by Baseline and asked to submit a tender for work on the site. Baseline and Girotto Precast had previously worked on another project and ultimately Girotto Precast did tender for the manufacture and supply of precast concrete wall panels. It was not part of those discussions or the later contract that Girotto Precast would manufacture or supply the Hollowcore floor planks. Girotto Precast did not manufacture Hollowcore floor planks and the supply and manufacture of those floor planks were sub-contracted by Baseline to Rescrete. 24 Following failed negotiations with a precast erector, Baseline approached Girotto Precast to take responsibility for the installation and erection of all precast elements including the Hollowcore floor planks. Because Girotto Precast did not have employees to perform erection work, it responded by indicating that it would only enter into the contract if it could sub-contract the installation and erection work. At that time, Girotto Precast was aware that Brendan Brown, who was then employed as a technical advisor and who had previously worked as the company's New South Wales construction manager, wished to establish his own precast erection company. Girotto Precast were of the view that, throughout Australia, there were a limited number of people with the requisite knowledge and experience to undertake a project of this magnitude. Having regard to Mr Brown's role it was considered that he was an exceptional employee who had demonstrated deep knowledge, skill and expertise as well as workmanship in the erection of precast elements. He had at all times displayed a strong commitment to detail in the performance of his work and a commitment to safety in the workplace. Mr Brown had been involved in the negotiations concerning the scope of work, particularly in relation to the erection component of the contract between Girotto Precast and Baseline. It was then agreed between Girotto Precast and Mr Brown that his company, Hi-Rise Erections, would perform all erection work under his supervision and this was accepted by Baseline. 25 In November 2004, Baseline entered into a sub-contractor agreement with Girotto Precast whereby Girotto Precast was to supply precast wall panels, co-ordinate the delivery of the precast wall panels and take delivery of Hollowcore floor planks and erect the wall panels and Hollowcore floor planks. As part of the contract, Girotto Precast were required to supply temporary shelf angles, brackets, bolts and props. However, Baseline had available a number of temporary shelf angles and Z brackets and props which they supplied to Girotto Precast for use on the project. In late November 2004, Girotto Precast sub-contracted the installation of the concrete wall panels, Hollowcore floor planks, transfloor balconies and lift shafts together with the supply and installation of temporary shelf angles, brackets, supports and props to Hi-Rise. The work performed at the Rhodes site in relation to the installation and erection of precast and Hollowcore elements was performed by Hi-Rise and Marr. Marr was sub-contracted by Baseline to provide all tower cranage services for the whole site. 26 The contract between Girotto Precast and Hi-Rise referred to a safety management system known as the "subby pack". This system had been implemented by Girotto Precast in or about 2003 in consultation with an ex-WorkCover Inspector. The subby pack provided pro-forma documentation that was tailored to the specific safety requirements of a site and provided a complete and structured approach to safety, including hazard identification and risk assessment methodology. Mr Power stated that when Mr Sweeny was appointed as occupational health and safety and environment manager, one of his first tasks was to revise and update documentation for the subby pack. The subby pack documentation was regularly reviewed and amended to ensure that it remained relevant to the actual work being performed and complied with safety legislation. At each site every sub-contractor was required to prepare its own subby pack documentation, including safe work method statements for the work they were performing at that particular site. The company's safety officer then carried out a review of each completed subby pack against a checklist to conform that the documentation had been properly completed. In preparing their site specific safe work method statements, the sub-contractors were required to identify each job step, to identify potential hazards within each job step, risk classifications of each identified hazard, the controls adopted to deal with identified hazard and the person responsible for each control. Before work commenced at each new site, a representative from each contractor was required to attend a briefing reading where each safe work method statement was discussed to allow the co-ordination of safety between the sub-contractors and to ensure that there were no site specific issues not addressed. Once that process had been completed, all of the individual contractor's documentation was combined with the Girotto Precast subby pack to form one documented system that was supplied to the project manager. That combined subby pack document was kept on site to be referred to by Girotto Precast, its sub-contractors and relevant builders and builders' personnel. 27 Prior to work commencing at the Rhodes site, the subby pack documentation was developed by Hi-Rise for that site and Mr Power instructed the occupational health and safety and environment manager to assist Mr Brown to set up a site specific occupational health and safety system. This process involved the development and review of safe working method statements for use at the site. When that process had been completed, Mr Brown brought his crew to the Girotto Precast factory in Prestons and took them through the documentation, including the associated safe working methods. This exercise occupied approximately half a day. All new employees of Hi-Rise who came on to the site after work commenced were taken through the documentation in the same way. 28 Under the contract between Girotto Precast and the sub-contractor, the sub-contractor was required to comply with a safety management system created by the subby pack, including the requirement to conduct weekly risk assessments at the site. Tool-box meetings were held on site and attended by Hi-Rise employees and others including Mr Monica, Mr Humphreys, Mr Chircop, Mr Bodman, Mr Hutchinson, Mr Reddington, Mr Hereriuha, Mr Johnson, Mr Mathews, Mr Rochair, Mr Leethy and Mr Sweeney. 29 Prior to the accident, Hi-Rise had reviewed their safe work method statements on three occasions. The original statements addressed job steps including the delivery of material and preparations for lifting, erection procedure and final positioning of floor panels on the beam. As a result of modifications made by Baseline's occupational health and safety manager, Mr Monica, the statements were modified. Mr Power's was informed by Mr Sweeney that Mr Chris Henson, senior construction Inspector with WorkCover had reviewed these method statements and had considered them to be "okay". The third version of the statements arose after a visit by a WorkCover Inspector who raised issues of working at height. The changes were made in consultation between Mr Brown and Mr Monica and the Girotto Precast occupational health and safety and environment manager. Again, Mr Power was told by Mr Sweeney that Mr Chris Henson of WorkCover had reviewed the method statements and considered them appropriate. 30 The company also had a system of audits to ensure that the safety management system embodied in the subby pack was in fact being followed. The occupational health and safety and environment manager conducted random audits of all contractors and used an audit form which the manager completed and had counter-signed by the contractor. The auditor looked at a number of matters including risk assessments, safe work method statements, induction and tool-box talks. Where it was found that the subby pack was not being followed, the auditor was to suggest corrective action together with other comments. The contractor was then to indicate who would be responsible for taking corrective action and identify when corrective action would be completed. The completed audit form was provided to the sub-contractor and a copy given to the builder in charge of the site. A further copy was returned to the local office of Girotto Precast and given to the general manager in New South Wales, Mr Power, for review and signing. Where corrective action was required, Mr Power would normally discuss the appropriate action with Mr Sweeney. Between late November 2004 and late January 2005, 23 sub-contractor audit forms had been completed in relation to this project and 10 such audits related to the activities of Hi-Rise at the site. In relation to Hi-Rise, the audit forms were signed by the occupational health and safety and environment manager for Girotto Precast and counter-signed by Mr Brown and subsequently signed by Mr Power. 31 On the morning of the accident, Mr Power attended a meeting of sub-contractors with Baseline at the site. Prior to that meeting he had spoken to Mr Brown and had discussed with him any issues that had arisen in relation to the sub-contract and although an issue was raised concerning the delivery of the floor planks by Rescrete and the fact that they were not being delivered in proper sequence, no other issue was raised. Mr Power then attended the sub-contractors' meeting where there were representatives of Baseline, Rescrete together with Mr Brown. At this meeting, Mr Power again asked if there were any safety issues that needed to be addressed and was told there were no safety issues. 32 From November 2004 until the date of the accident, Hi-Rise had erected at the site a number of precast wall panels, balconies, lift shafts and Hollowcore floor planks. Mr Brown and persons employed by Hi-Rise had also erected precast elements on other construction projects. The use of temporary support in the form of Z brackets and timbers had been adopted by Hi-Rise at this site and that was the same method that had been used at another project known as the Metro Village. In August 2004, Meinhardt had confirmed that was the type of temporary support to be used. Mr Power commented that, prior to this incident, Girotto Precast had not experienced a failure of the type that occurred in this accident. 33 Mr Power then described the response and reaction of the company following the accident and this included a number of employees attending the site and Mr Power contacting members of management to ensure that Mr Brown's family and friends were notified of the accident in the most appropriate manner possible. Girotto Precast complied with all prohibition and improvement notices issued upon it immediately after the accident. A number of amendments were made to the safe working method statements and a number of amendments were made in consultation with Baseline. The revised safe working method statement specified size and grade of timber that was to be used and identified the following matters: (a) the timber must span over a minimum of the full width of two Z brackets; (b) a minimum of two brackets were to be positioned underneath each floor plank; (c) the timbers were to be butted together midway between the bracket supports with a tolerance of +/- 25 mm; and (d) the centre line of the first or last Z bracket was to be no more than 300 mm from the free end of the timber. 34 By arrangement with Baseline, Girotto Precast prohibited its sub-contractors from re-commencing work until steel "safety net" scaffolding was installed in areas of similar configuration. This safety net scaffolding sat directly underneath and within approximately 20 mm of the soffit of the Hollowcore planks. The safety net scaffolding prevented the planks falling to the level below as occurred in the accident. 35 Following the commencement of the prosecution, Girotto Precast commissioned an expert to consider a number of issues relating to the cause of the failure. A report was prepared by a consultant engineer Mr Gary Wyatt, especially in relation to the design specification of the planks. Submissions were made on behalf of the defendants in relation to the particulars of the charge in light of Mr Wyatt's report and following that action, four new particulars were made to the charge. In light of the recently obtained information as a result of Mr Wyatt's draft report, the company took a number of steps to ensure that the failure did not occur again. Girotto Precast employed an engineer with 20 years' experience to fill the role of technical manager New South Wales, with responsibility for reviewing design plans to ensure that they were in accordance with acceptable Australian Standards and ensuring that the floor planks were adequate to carry construction loads. Until receipt of Mr Wyatt's report, Girotto Precast had relied on consultant engineers who had reviewed and approved the relevant plans and drawings. Girotto Precast now required the builder to supply a certificate of compliance, completed by an appropriate qualified person to ensure that the design plan had been followed and that the floor planks were built to applicable engineering requirements. Girotto Precast also required its management teams, supervisors and sub-contractors' managers and their supervisors to attend a two-day risk management course. All those who attended were paid by Girotto Precast. 36 Mr Power spoke of senior managers, including himself, assisting the WorkCover investigation and the assistance provided by the company to Mr Brown's family and friends. He spoke of the number of Mr Brown's friends within the company and his own personal knowledge of Mr Brown and how he had been affected by Mr Brown's death. The attributes of the company's product were described as well as its participation in industry forums where the company had dealt with issues of safety as relevant their section of the industry. Mr Power had been authorised by the directors of Girotto Precast to express the company's sincerest regret in relation to the breach of the Act and to state that the company accepted and recognised that it failed to provide and maintain a safe system of work for the installation and erection of the floor planks. The incident had been a reminder to everybody involved in Girotto Precast of its obligations both morally and legally to provide a safe workplace. The company, through its directors and employees, had made every endeavour to remedy the deficiencies that existed in this particular case. 37 Mr Giuseppe Girotto spoke of his 20 years' involvement in the precast concrete industry and how the company had been set up in Melbourne in 1987. In December 1990 he became a director of the company and in 1992 assumed the position of managing director. As managing director his duties included liaising with clients, reviewing tender documents, identifying and managing growth opportunities for the business. Mr Power, as general manager New South Wales, was one of the people who reported to him. 38 Mr Power had day-to-day operational control of the business in New South Wales and Mr Girotto's relationship with him, as with other senior managers, was directed primarily at supporting and guiding them. Operational issues were only discussed with him to confirm that the system introduced by Girotto Precast was being followed (such as compliance with the subby pack) or if there was a significant matter for the business that Mr Power considered required his involvement. Approximately six months before the accident, in mid-2004, Girotto Precast sold 50 per cent of its business to a new major shareholder and that resulted in a change of the membership of directors. Two new directors were appointed representing the interests of the new shareholder. With the change of ownership and the reformation of the board, Mr Girotto said he had limited involvement in the day-to-day running of the business and his role became focused on identifying growth opportunities and introducing a succession plan. Part of the sale agreement included an option deed for the new major shareholder's purchase of 30 per cent of the business in June 2006 and the final 20 per cent of the business in June 2008. The new major shareholder exercised the option for the 30 per cent interest in June 2006 and will exercise its option to purchase the final 20 per cent in June 2008. Mr Girotto ceased in the position of managing director at the end of 2005 and assumed the position of executive director. In this position he was now employed by the majority shareholder. 39 As executive director, Mr Girotto is engaged under an employment contract that will expire in June 2008. After that date he will not hold a directorship with Girotto Precast but will have an employment relationship with the company and has agreed to enter into a consultancy arrangement on a "as required" basis. As a result of that arrangement, Mr Girotto would not be required to participate in the business on a frequent or regular basis. At the time of the accident in February 2005, Mr Girotto was in Brisbane exploring growth opportunities for the company. 40 The circumstances surrounding the establishment of the company by his father was dealt with by Mr Girotto. He described the nature of the business and how the manufacturing of precast components were carried out in response to orders placed by clients. Before the process was commenced the client provided detailed engineering and architectural drawings that were relied upon to produce shop drawings: those shop drawings were then checked and confirmed by the client's architect and the engineers. 41 The contractual arrangements whereby Girotto Precast became involved at the Rhodes site were dealt with by Mr Girotto and confirmed by evidence given by Mr Power and Mr Sweeney. He noted that Mr Brendan Brown was the principal of Hi-Rise and how the erection and post-erection of all precast concrete elements had been sub-contracted by Girotto Precast to Hi-Rise. Hi-Rise employed approximately ten people at the site. Mr Girotto noted that prior to the accident, Hi-Rise had erected a number of floor planks at the Rhodes site and a number of those planks were supported using the system of temporary support that was used on other construction sites. 42 Mr Girotto had know Mr Brown and his family for nearly 11 years and spoke of the close personal and social relationship that developed between them over those years. Mr Brown had originally worked for Mr Girotto's father as a carpenter and was held in high esteem both as a tradesman and a person. Mr Brown continued to work for Mr Girotto's father on various projects while running his own business as a contractor and in 1997 when the Sydney factory was being built, Mr Girotto and Mr Brown were working closely together on that project and from time to time Mr Brown would stay at the house occupied by Mr Girotto's father. After Mr Girotto became responsible for the New South Wales business, he spent some time living with Mr Brown in a house rented by the company and came to know Mr Brown very well and formed a strong personal relationship with him. Mr Girotto went fishing with Mr Brown, socialised with him and came to know his wife and children. That relationship continued when Mr Girotto moved permanently to Sydney. He loaned Mr Brown money, on a "social basis", to allow him to purchase a fishing boat and later to purchase a larger boat. By agreement, the money had not been repaid. 43 Mr Girotto spoke of the devastating effect of Mr Brown's death both on a personal basis and because the company was involved. Mr Girotto had prided himself on being safety conscious and setting high safety standards with the company. He understood his role as a director and the fact that he shared responsibilities under the occupational health and safety act similar to the corporation. In accepting his responsibility under the Act, he expressed his sincere regret for the breach of the Act which resulted in the death of Mr Brown and the injuries sustained by the other workers. Mr Brown's death and the accident had caused him significant distress over a number of years and he had dwelt upon it constantly as he considered ways in which the accident could have been avoided. It was only in the last few months that he had been able to stop thinking on a daily basis about this accident. In 2007, he had commenced seeing a psychologist for professional counselling as a result of his continued depression relating to Mr Brown's death. He still continued counselling which primarily dealt with the grief Mr Girotto had suppressed over the years as a result of the death of his mother, Mr Brown and most recently in November 2007, the death of his twin brother. He was currently addressing a grief suppression which had been identified and as a consequence of the accident, he had changed his life focus to a more personal and spiritual existence. He no longer felt that it was important for him to remain active in business and he no longer sought the responsibility that comes with management or executive positions. 44 Mr Girotto described the steps he took on the day of the accident to come from interstate to make arrangements and support Mr Brown's wife and her family. He attended the Rhodes site later in the evening and on the following day, arranged counselling to be provided for all persons affected by the incident. Mr Girotto's brother had been killed in a work accident and he spoke of missing him terribly and suffering from his loss and how difficult it was addressing the present prosecution in the light of these losses. 45 The company's focus on occupational health and safety was an important issue for Mr Girotto and he described in some detail how, with other managers, he had developed and promoted a management system that concentrated on safety, hazard identification and risk assessment. As a director he had encouraged and supported safety initiatives by ensuring resources were made available at board level and gave as an example the introduction of the subby pack. Once resources were allocated safety initiatives were commenced. Mr Girotto required all developments to be reported to him to ensure that the initiatives were properly introduced in the company's operations. The company had a zero tolerance for non-compliance with safety policy and to satisfy himself that safety was being addressed at the site, he regularly questioned people working for the company and others, including client representatives. Whenever he visited sites, he would check to see that fundamental safety practices were being used. 46 As managing director of the company, Mr Girotto took steps to ensure that there were competent systems of communication, consensus and implementation on safety matters. He ensured that safety was constantly reviewed and areas for improvement were identified. To ensure the integrity of the safety systems he also ensured that appropriate qualified professionals were employed, in particular he mentioned the qualifications of Mr Robert Power when appointed as general manager New South Wales and Mr Sweeney when appointed occupational health and safety and environment manager. He also spoke of the employment in New South Wales of construction co-ordinators to ensure that there was direct communication with clients and sub-contractors. Mr Girotto's contact was not directly with the construction co-ordinators but he maintained a random site visit regime involving him attending one site per week. On site visits he discussed issues with the construction co-ordinator present and secondly he regularly discussed site issues including safety with the construction co-ordinators in the normal course of running the business. He had authorised co-ordinators to stop any work on safety grounds and had reinforced the importance of stopping work to ensure that employees and contractors were made aware of safety standards being maintained at all times. 47 In relation to the Rhodes site, Mr Girotto spoke of his discussions with Mr Power and initiatives taken by Mr Power in relation to safety at various operational sites, including Rhodes. Mr Power had told him that he was taking a very active role in the Rhodes project and had allocated Mr Sweeney's resources almost entirely as a priority to that job. Mr Sweeney would be spending quite a bit of time performing audits including surprise audits to ensure Hi-Rise's safety performance. Mr Power told him that Mr Monica, the occupational health and safety manager for Baseline, had arranged for Mr Chris Hanson from WorkCover to review and approve of the safe work method statements and as a result, Mr Girotto understood that the method statements had been checked prior to Girotto Precast commencing work on the site. 48 As set out in other evidence, Mr Girotto descried how Girotto Precast became involved in the Rhodes site and how Baseline had approached the company to extend its original work regarding precast walls to also involve the erection of the floors. Mr Brown had made it known to Mr Girotto that he wished to go back into business on his own as a sub-contractor and Mr Girotto had told him that he would support him in that desire. The opportunity arose when Baseline made the approach about the Rhodes site and Mr Girotto regarded Mr Brown as being highly qualified for the work. Mr Girotto said he inspected the work performed at the Rhodes site on a regular basis, approximately once a fortnight, to ensure that the builders, contractors and managers were performing work appropriately. On those visits he spoke to a variety of people and received positive feedback indicating that the project was going well and that the employees and contractors were not under any particular pressure. At no stage was he informed of any issues arising with the Hollowcore floor planks or difficulties with installing them, except for delivery sequencing. In early discussions with Mr Monica, the Baseline safety manager, Mr Girotto had informed him that his company would not tolerate any shortcuts at the site in relation to safety and he invited Mr Monica to stop the site and contact him personally if he was not happy with safety aspects of the job. Mr Girotto also gave evidence about the company's internal processes for reviewing its safety systems and practices and how he was informed of the results of audits by the general manager and/or the safety manager. He had taken steps to arrange for an audit of the company's safety systems to be conducted by an external auditor, including those in operation at the Rhodes site and a meeting was taking place with the auditor, Mr Power and Mr Sweeney when the accident occurred. 49 Immediately after the accident, the WorkCover Authority had issued the company with prohibition and improvement notices and Mr Girotto instructed senior managers to ensure that the company fully complied with the requirements of the notices within the time frame specified. The company then amended the method statements for the site and some of those amendments resulted from discussions between the company and Baseline. Most of the amendments made to the method statements related to the installation and positioning of temporary support, procedure for the lowering of floor planks, procedure for the final positioning of floor planks on beams and the erection procedure. An engineering consultant, Mr Gary Wyatt, was engaged by the company and Mr Wyatt identified a design problem with the Rescrete floor planks not previously revealed. As a result of Mr Wyatt's investigations, the company now employed a full-time engineer to provide the business with constant engineering support, including ensuring that design plans were in accordance with the applicable standards and ensuring that floor planks were adequate to carry the construction load. After the accident, Mr Girotto authorised re-training to be provided to senior managers and managerial members of the sub-contractors engaged by Girotto Precast. 50 A great deal of support had been organised after the accident for Mr Brown's wife and family. A number of financial payments were made by the company totalling approximately $89,000, primarily in relation to the wakes held in Melbourne in honour of Mr Brown and all the costs associated with his funeral. That payment also covered redundancy payments to Hi-Rise employees and costs associated with the provision of accounting and legal advice to Mr Brown's wife in relation to the Hi-Rise company. Mr Girotto assisted Mr Brown's family to obtain financial support totalling some $45,000, contributing to the family expenses, assisting with the management of an investment property until it was sold for the benefit of the family and providing services to a cost of $10,000 without seeking reimbursement for those expenses. Mr Girotto kept in contact with Mrs Brown to offer her support. Mr Girotto also financially supported a number of charities. He regularly participated in the Walk in Support of Juvenile Diabetes and financially contributed to the charity as well as giving financial contributions to Canteen, Greenpeace and World Vision. In 1996, the Girotto family had also donated an Anzac monument to the City of Dandenong paying approximately $174,000 for the monument and costs associated with the design and architectural advice on the relocation of the site. 51 Three detailed personal references were tendered in support of Mr Girotto. Those references spoke of Mr Girotto's personal integrity and business honesty and his commitment to safety in the operations of the company. It was noted how deeply and personally Mr Girotto had taken the death of Mr Brown and how he had carried that burden for some time. He was described as an "extraordinary manager of people" and as a "rare leader". He was admired by all with whom he came in contact. It was said that he had not only paid close attention to devising innovative means of providing safety in the internal operation of his factories but had also taken steps to ensure that safe work practices were following by those who were sub-contracting to the company. His company factories were described as being showpieces of order, pride and workplace conviviality. 52 Mr Gary Wyatt was a director of Brown Consulting Pty Ltd and he had been engaged by solicitors acting on behalf of the defendants to provide an opinion of the probable cause of the accident that occurred in February 2005 at the Rhodes site. Mr Wyatt had provided a draft report and a final report and had also considered an engineering report prepared by Mr Chris Turner from WorkCover. In the executive's summary, Mr Wyatt stated: I have undertaken a detailed structural engineering review of the incident, including computer modelling. These calculations provide results generally consistent with the material made available relating to the incident. At the time of the incident, the loads applicable were less than those, which would apply during a later stage of the construction, when topping concrete would be cast over the slabs and construction live loads would apply. To investigate this aspect further, an assessment was undertaken of the adequacy of the critical hollow core slab MBG51 for construction phase loading conditions. This assessment indicated that the design of the critical slab MBG51 was not adequate for the construction phase loading conditions. I have been shown photographs of the failure of a slab during a later stage of the construction at the same site, of similar configuration to slab MBG51 in the original incident, which appears to confirm that the factor of safety for these slabs during construction phase was inadequate. It has been concluded that the design inadequacy of slab MBG51 was a significant contributing factor in the incident on 8th February 2005. It has further been calculated that had the original design inadequacy been addressed by eliminating the edge void (the most common industry approach,) it is unlikely that the incident would have occurred. Under the heading "Conclusions", Mr Wyatt stated as follows: On the basis of the engineering assessments undertaken for the incident on 8th February 2005, it has been concluded that the collapse resulted from a shear failure at the east external web of slab MBG51 at the south end. The forces in this web were influenced by the conditions at the north end of the slab, where the timber beam at the east steel "Z" bracket was not effective in providing temporary support. The review of the design of slab MBG51 for design phase conditions, assuming that the north end was adequately supported, indicates that the shear capacity was inadequate. It has been concluded that this design inadequacy was a significant factor in the failure on 8th February 2005. 53 In February 2005, Mr Chris Turner of the WorkCover Authority of New South Wales provided an engineering report on the collapse of the precast floor at the Rhodes site. After reciting the circumstances prior to the collapse, Mr Turner identified factors contributing to the collapse and listed factors as follows: The following factors are considered to have been contributed significantly to the collapse. While each on its own may not have been sufficient to cause the collapse each reduces the stability of panel 51. The placement of Panel 53 on top of the other panels when it would not fit in its planned location is considered to be final action that led to the collapse, but without the other factors it may have only led to a reduced factor of safety rather than a collapse. a) The location of the support brackets under the northern end of Panel 51. The supports did not extend across the full panel width and therefore resulted in a reduction in the ability to support the panel in general, and specifically this moved the tipping line in from the edge of the panel. b) The length and end condition of the timber bearer under the northern end of Panel 51. The timber did not extend across the full panel width and therefore resulted in a reduction in the ability to support the panel in general, and specifically moving the tipping line in from the edge of the panel. The angle cut on the end of the timber resulted in the timber not being supported on the full length of the bracket, placing an eccentric load on the bracket and causing it to rotate under load. This allowed the timber to deflect until the bracket rotated to the point of contacting the panel itself. This resulted in a lowering of the support at that corner, allowing the panel to drop at that corner before the load was taken on the bracket, thus placing a twist into the panel and increasing the load at the south eastern corner of the panel . c) The limited bearing of Panel 51 on the chamfered precast wall at the southern. Panel 50 was measured as having approximately 40 mm bearing. Having a limited bearing reduces the ability of the panel to distribute the load throughout the full depth of the panel, and makes any damage to the end of the panel more critical. d) The off-centre load placed on Panel 51 by the steel shelf angle supporting Panels 52, 53 and 54. This load results in an uneven distribution of load on Panel 51, thus significantly increasing the bearing pressure on that side and producing a rotation load on the panel. e) The increased load from Panel 53 being temporarily placed on Panel 51 or on Panels 51 and 52. When Panel 53 is in its intended position half of its mass, ie approximately 1.14 tonne, is supported by the edge of Panel 51. Moving Panel 53 to directly over Panel 52 increases this load to 1.87 tonne and placing it halfway over Panels 52 and 51 further increases the load to the full 2.27 tonne. f) Possible damage to the south east corner of Panel 51. Any damage to the corner of the panel would move the point of support in from the edge of the panel, thus increasing the load on the end of the remaining bearing area and moving the tipping line in from the panel edge. g) Opened cores on the southern end of Panel 51. Opening the cores at the end of the panel reduces the shear capacity of the bearing area. This is a temporary effect during construction only that does not affect the finished structure, as the subsequent placement of the topping slab increases the shear capacity, including the insertion of tie bars and filling of the opened cores with concrete. 54 Having set out the factors contributing to the collapse, Mr Turner, by reference to the same paragraph numbers, addressed possible means that may have prevented the collapse. That section of his report is in the following terms: The possible means to have prevented the collapse are essentially means to remove or reduce the effects of the factors listed above. Each is addressed using the corresponding numbering to the list above. a) Have the supporting brackets and timbers support across the full width of the panel. b) as per a) c) Increase the length of bearing at the ends of the panel, or provide additional temporary support. For example by increasing the width of the wall at the top by localised thickening or reducing the chamfr, or by adding additional temporary support such as brackets and timbers, formwork frames or props during the construction phase. d) Measures as listed in a) & c) above to support the heavily loaded corners of eccentrically loaded panels, such as Panel 51. e) Have pre-planned procedures in place to deal with panels that do not fit. For example lift back down to the ground, or if to be placed on a finished slab or installed panels have the design pre-checked as to the adequacy for supporting a panel, and designate the locations and orientation to be used. It may be that such designated locations and orientations include being over a wall or rotated so that the load is spread over a number of panels. f) Inspection of panels prior to installation and/or provision of additional temporary supports. In the long term end damage that results in missing concrete will be at least partly rectified by the missing concrete being replaced as the gaps between the panels and opened cores are filled during the pouring of the topping slab. Mr Turner's views in relation to these matters were not contested by Mr Wyatt. 55 Mr Laurence Fulton, a consulting psychologist prepared an extensive report in relation to Mr Giuseppe Girotto. Mr Girotto had been consulting Mr Fulton for nearly 18 months in relation to a number of issues in his life, including the loss of his mother and ultimately the loss of Mr Brown and then his twin brother. His counselling was continuing. DELIBERATION 56 It is well accepted in this aspect of the Court's jurisdiction that the absence or occurrence of a particular accident does not necessarily indicate the objective seriousness of a breach of the Act. In the present case, the task involved the placing of precast flooring planks weighing between two and three tonnes with people working on and underneath the planks and where temporary support was initially used to secure the flooring planks. The collapse of those planks at the Rhodes site, the death of Mr Brown and the injuries received by the other workers provides clear evidence of the risks and dangers associated with this class of work. 57 The Agreed Statement of Facts dealt with a large number of surrounding facts, including the details of the contract, the performance of the work and identified a number of parties involved in that work. The defendants have entered a guilty plea to a charge that particularised a number of failures: a failure to provide an adequate safe work method for the erection of the identified floor planks; a failure to require the use of measures to ensure that the identified floor planks did not fall (such as, catch structures); a failure to identity the size of the timber supports to be used for supporting identified floor planks; a failure to identify the extent to which timber should overhang the Z bracket; a failure to ensure that the design plans were in accordance with the applicable Australian Standards; a failure to ensure that the design plans were followed and that the floor planks were built to applicable engineering requirements; and, a failure to ensure that the floor planks were adequate to carry the construction loads, especially given the small bearing area of the southern end. A plea of guilty to those particulars indicates a breach at a number of levels in the work process involved in the undertaking. 58 The failures particularised in the charge are given flesh and substance by the documents placed before the Court, including the Agreed Statement of Facts. The following is to be noted from the Agreed Statement of Facts: (a) the timber was shown on the Rescrete connection drawing details as the temporary support. Hi-Rise was responsible for the supply of the hardwood timber for temporary support of the Hollowcore. There appeared to be no other measurement or specifications relating to the dimensions, grade and classification of timber to be used; (b) the timber supporting plank MBG 51, at the eastern end, had a splay cut at an angle of approximately 28 degrees and at the time of collapse, this end of the timber rested on the edge of a Z bracket by approximately 10mm. The western end of the timber had been splay cut at an angle of approximately 62 degrees and overhung the western Z bracket by 270mm under Rescrete floor plank MGB 50; (c) at all material times, no checks were made on the temporary supports by Baseline or Girotto Precast to ensure that they had been installed in a manner that would enable them to support the Rescrete floor planks during the erection process. It was not known whether Mr Brown performed any checks on this area; (d) the final plank MBG 53 was found to be approximately 15-20mm too wide for the opening. The system in place for dealing with an oversize plank was to land it on the deck adjacent to its final position and either jack hammer or saw cut it to size. There had been previous experience of over sized Rescrete floor planks at the site. These were dealt with by Hi-Rise without reference to Girotto Precast; (e) there were a number of systems of work in place on site for the management of occupational health and safety issues. The systems were promulgated by Baseline, Girotto Precast and Hi-Rise; (f) Girotto Precast's safety plan required that the construction co-ordinators facilitate the safe work method for the trades. However, it appears that Girotto Precast co-ordinators had no involvement in that process and the process was carried out by Mr Sweeney, the occupational health and safety and environment manager for Girotto Precast; (g) Hi-Rise developed a safe work method statement that did not adequately cover the erection of Rescrete floor planks and did not cover the installation and specification of the temporary supports to be used during the erection process; Girotto Precast assisted Hi-Rise by having its occupational health and safety manager take down the work methods as Mr Brown described them to him; (h) Baseline and Girotto Precast failed to identify an absence of any reference within the safe work method statements in relation to the installation of Rescrete floor planks; (i) Girotto Precast did not supervise the work being undertaken at the time of the incident. Neither of the two construction co-ordinators nor the occupational health and safety manager who attended the site were present; (j) the occupational health and safety manager for Girotto Precast was to conduct weekly audits of the site and report any non-conformances to Mr Power who in turn reported to Mr Giuseppe Girotto and the board of directors. Girotto Precast failed through the inadequacy of its audit process to provide and maintain a safe system of work for the installation and erection of the floor planks at the site being MBG 55, MBG 51, MBG 52, MBG 53 and MBG 54S; (k) Baseline failed in the same respects as identified above, during the course of reviewing the work method statements during the induction process and regular safety walks; (l) Baseline also prepared a safe work method statement for the site which only dealt with the original precast wall panels, rather than the erection of precast floor panels; (m) Girotto Precast generally attended the site weekly to conduct safety audits of Hi-Rise's work and two or three times per week on panel delivery requirements. Through their visits, Girotto Precast reviewed the progress of the work undertaken and co-ordinated the delivery of the next set of panels. Girotto Precast had no direct input into the erection process or methods used by Hi-Rise in erecting precast panels; (n) from the available records, the last safety audit conducted by Girotto Precast took place on 31 January 2005; (o) no systems were in place to ensure safe work methods for dealing with oversize floor planks, particularly in relation to the location and storage of the floor planks. 59 Having regard to the evidence before the Court, the nature of the particulars to which the pleas of guilty were entered and the substance given to those particulars by the Agreed Statement of Facts (and particularly the matters referred to above), it is readily concluded that this was a very serious breach of the Act. As pointed out by the prosecutor, the steps required to address the risks to safety were relatively straightforward. While readily accepting responsibility for this breach, the defendants placed this particular accident in the context of a company having an established record of excellence for its product and paying close attention to safety, both in its manufacturing and construction phases. Girotto Precast had appointed very experienced people as state managers and safety officers and had introduced co-ordinators who together assisted in developing, promulgating and enforcing the company's system of safety. While the evidence supports that submission in a general sense, the circumstances surrounding this accident demonstrated a far reaching failure in the defendant's system of safety. Girotto Precast had determined to undertake this extensive task by use of sub-contractors who were to be involved in not only placing the wall panels of which Girotto Precast had wide experience, but also to place the floor panels which was an area in which Girotto was not engaged as part of its normal business. The defendants' obligations in those circumstances was, if anything, heightened. While the defendants point to the fact that there were many others involved at the site, including Baseline and Rescrete, and there was in that sense no lack of supervision available, the defendants had their own responsibilities for ensuring safety in the work being performed by Hi-Rise. Indeed, the defendants' safety system concentrated upon the role of sub-contractors to ensure that its safety methods and systems were being followed. 60 There was considerable debate over the effect of the document forwarded to Girotto Precast in mid-May 2004 entitled, "Precast Concrete Panel Specifications Prepared for Rhodes Development for Statewide Developments". This document was prepared by Meinhardt and was sent to Girotto Precast before it entered into a contract with Baseline. The prosecutor contended that this document was contractually binding on Girotto Precast and effectively bound the company to check the structural soundness and design of the floor planks. These contentions were rejected and were heavily contested by the defendants. Ultimately, it is unnecessary to make any finding about the binding nature of this document, having regarded especially to the last three particulars of the offence to which the defendants entered a plea of guilty. Further, the remedial steps taken by the defendants included the appointment of an engineer to ensure that the design plans have been followed and that the floor planks are built to applicable engineering requirements. 61 In this case there is a significant role for general deterrence in setting an appropriate penalty. The evidence suggests that this method of construction is growing and while there is an expertise being developed by specialist companies such as Girotto Precast, the risks to safety that attend the performance of that class of work and the need to be alert in relation to every aspect of the task is highlighted by the accident that took place in February 2005 at Rhodes. In relation to specific deterrence, the defendant continues to operate in this highly specialised and inherently dangerous industry and employs a significant workforce and uses sub-contractors extensively in New South Wales. The company has a prior record, having been found guilty by the Chief Industrial Magistrate in 2005 of a breach of s (8) of the Act and fined the sum of $13,000. While that breach is in relation to a fall from height and in that sense unrelated to the specifics of this incident, the fact that it is a quite recent offence strongly suggests that specific deterrence should also form a substantial component of the penalty to be imposed. 62 There are a number of subjective factors to be considered in relation to the corporate defendant, Girotto Precast. The company entered a plea of guilty after significant alterations were made by the prosecutor to the original particulars. When the Amended Application for Order was filed in Court, both defendants entered a plea of guilty. Although there was some argument about whether or not the changes in the particulars were directly brought about by the contents of Mr Wyatt's report, it is of some significance that the company went to significant ends to establish precisely what happened in this incident and when the Amended Application for Order was filed, both defendants readily accepted their responsibility by entering pleas of guilty. The company made important amendments to its existing and extensive safety systems to address these risks and engaged an engineer to advise on design aspects for future operations. In those circumstances, in both cases, the plea of guilty is to be regarded as an early plea and one that is deserving of a 25 per cent discount. 63 While Girotto Precast has a previous offence, it has been in operation for a number of years in a heavy industry where the risks of injury are an every day reality. Having regard to the nature of the industry in which it works and the size of its workforce, including the use of a considerable number of sub-contractors over this period of time, the corporate defendant's record can be accepted as representing a good industrial record. The company had significant safety processes and systems and had made financial resources available for the development of those systems but regrettably, in this instance, those systems were not adequately enforced to ensure the safety of workers. As detailed in the Agreed Statement of Facts and in the evidence of the defendant's witnesses, steps were promptly taken after the accident to address the risks that were shown to exist under the current work methods in operation at the Rhodes site. It is of some importance that there was ongoing co-operation with the WorkCover Authority. There can be no doubt that Mr Brown's death was keenly felt among management and employees of Girotto Precast and the defendant's contrition is shown not only by the entering of an early plea in each matter, but by the prompt counselling made available to workers on site following the accident and the steps taken to look after the emotional and financial welfare of Mr Brown's family. The good industrial citizenship of the corporate defendant is further demonstrated by Mr Girotto's evidence about its support for a number of charities. All of these matters will be taken into account in mitigation of the penalty. 64 In the separate proceedings concerning Mr Giuseppe Girotto as a director of Girotto Precast, an application has been made for the Court to exercise its discretion pursuant to the provisions of s 10 of the Crimes (Sentencing Procedures) Act 1999 ("The Sentencing Procedure Act") resulting in the charge being dismissed. Senior counsel for Mr Girotto immediately accepted the difficulties that lay in the path of a successful application under s 10 in relation to serious breaches of the Occupational Health and Safety Act. Cases such as the The Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and anor (2001) 105 IR 348, WorkCover Authority of New South Wales (Inspector Hopkins v Profab Industries Pty Ltd (2000) 49 NSWLR 700, Riley v Australian Grader Hire (2001) 103 IR 143 and the cases collected in Inspector Downie v Menzies Property Services Pty Ltd (2004) 136 IR 449 confirm the necessity for the defendant to make out a case of substance, as well as the difficulties associated with making out such a case where there is a serious breach. During argument, attention was also given to the exceptional circumstances in Inspector Cooper v Kwik-Seal Pty Ltd and anor [2006] NSWIRComm 48. It was readily accepted, however, that in relation to the exercise of the discretion under s 10 of the Sentencing Procedure Act there was little value in considering the approach taken in particular decisions or judgments where the discretion was exercised, as each matter must turn on its own facts. 65 In this particular case, the prosecutor indicated that factors relevant to proceedings against Mr Giuseppe Girotto, although not representing all of the considerations, included the fact that the company of which he was at the apex for so long was a previous offender and he was also a hands-on player in relation to the company's safety systems. While it is accepted that Mr Girotto was the managing director of the corporation at the time of the previous offence by the company, the prosecutor apparently took the view that Mr Girotto should not be separately proceeded against in that matter and he comes to these proceedings with a clear record. As to the extent of Mr Girotto's "hands-on" participation in the safety systems of the company there appears to be little doubt that, in its early years, that was an apt description of his role but as the company grew, a number of people were employed with safety roles such as Mr Power, Mr Sweeney and the co-ordinators. Mr Power's evidence was that, prior to the incident, a major shareholding in the company had been sold with two new directors being appointed resulting in Mr Giuseppe Girotto as well as Mr Steven Girotto being "moved out of the day-to-day running of the business". Mr Power, as general manager, described himself as the person "who had overall responsibility for all works being performed by Girotto Precast in New South Wales". From this time, Mr Giuseppe Girotto was given the primary responsibility of expanding the business while Mr Steven Girotto was given responsibility for improving the technical and operational manufacturing side of the business. 66 In his own evidence, Mr Girotto stated that, with the changes in ownership and the formation of the new board, he had limited involvement in the day-to-day running of the business and instead his role became focused on identifying growth opportunities and putting in place a succession plan. He ceased being managing director at the end of 2006 and then assumed the position of executive director, a position he will relinquish after June 2008. As part of the agreement with the company, he will not be required to participate in the business on a frequent or regular basis but will be a consultant on an "as required" basis. As it stands, the evidence does not suggest that type of involvement in the safety systems of the company could be accurately described as a "hands-on" role. 67 Mr Girotto did speak of ensuring, in his capacity as managing director, that the company had in place an appropriate management system that focused on occupational health and safety. He also stated that, in order to satisfy himself that safety was being addressed at sites, he would regularly question people working for the company and others including client representatives and whenever he visited sites, he would check to see that fundamental safety practices were being used. He did undertake random site visits and visited the Rhodes site approximately once a fortnight. Those statements, in the context of all the evidence, appear to be a description of the means by which (in part) Mr Girotto was able to keep abreast of the company's safety systems as operating in the field but there is no suggestion in the more detailed evidence of Mr Power and Mr Sweeney that Mr Girotto's activities were part of the formal safety system of the company. At no time in the proceedings was it suggested by Mr Girotto or on his behalf that he had no responsibility in regard to safety or in relation to this incident, but from the evidence the picture emerged that this responsibility was placed in the context of a growing business where quite deliberate steps had been taken to appoint very experienced and qualified people in the front line as state managers, safety managers and safety co-ordinators. In many respects, the persons with influence on the company's safety systems who had managerial roles that could be aptly described as being "hands-on" in the development, promulgation and enforcement of the company's safety systems were Mr Power, Mr Sweeney, the safety officer and the co-ordinators. The evidence identified six or seven other managerial positions with safety responsibilities. 68 Mr Girotto comes before the Court as a first offender having occupied a senior managerial role in a company engaged in heavy industry with its attendant risks to health, and having done so for approximately 20 years. The company's only prior offence occurred some ten years after it commenced business and until the events of 2005 at Rhodes, there had been no other recorded breach of occupational health and safety legislation. The personal references describe Mr Girotto as a diligent and caring person who was alert to eliminating dangers in the workplaces in which he was operating. He was a person of good repute and individually and through his company supported charitable organisations. Despite this impressive resume, the authorities in this Court have warned against granting applications under s 10 of the Sentencing Procedure Act where there is, as here, a serious breach of the Act. In the present case the corporate defendant has pleaded guilty and does not seek the benefit of an order under s 10. The corporate defendant will be judged against the objective seriousness of the offence, the need for deterrence and bearing in mind the objectives of punishment but mitigated by those subjective considerations which have been referred to earlier in this judgment. Unlike the situation found to exist in Inspector Mayell v Claude Van Den Bruggen t/as Dolphin Antenna Service [2007] NSWIRComm 193, in this case on the evidence, the failure of the corporate defendant cannot be solely and ultimately laid at the feet of Mr Giuseppe Girotto. 69 Consideration then needs to be given to the provisions of s 10(3) of the Sentencing Procedure Act. It should be immediately stated that the offence cannot be regarded as "trivial", but the authorities have recognised that such a conclusion is not determinative of the exercise of the discretion available under s 10. The evidence discloses Mr Giuseppe Girotto as being a person of integrity, of general good character and with the operation of his company, a good corporate citizen. He has no relevant offences and has a clean record. He is a person who appears to be coming to the end of his career in senior managerial positions within the company and within the next month or so, will relinquish the position of executive director and become a consultant to the company. The prosecutor has pointed out that there is no undertaking made by or on behalf of Mr Girotto that he would no longer operate as a director of a company or a company in the recasting/manufacturing/construction industry or be involved in the management of such a company. He was not cross-examined in relation to his affidavit and a fair reading of his affidavit strongly suggests that recent events, including the death of Mr Brown with whom he had such a close personal relationship, has re-focused his life and that these corporate roles are no longer sought by him. Nevertheless, this is a matter to be considered in dealing with the s 10 application. 70 The extenuating circumstances in which the offence was committed are not simply to be dealt with by considering what the company could have done to avoid the risk to safety that became evident at the Rhodes site in February 2005, but calls for a consideration of what role Mr Girotto could have played in addressing those risks. There is no doubt about his authority but the evidence as to his removal from the day-to-day operation of the business and his concentration on new business opportunities, combined with the appointment of senior managers who did have day-to-day control of the operation including safety, qualifies as an extenuating circumstance in the sense that it serves to lessen, but not eliminate, his culpability and provides some excuse for his personal lack of action. The extenuating circumstances also extend to the fact that this system of work and temporary support had been successfully used at other sites and that Girotto Precast had not previously experienced such a failure. Mr Wyatt accepted that the design fault he identified could not have been detected by the work crew present on site, but required the examination of an engineer. 71 All of these matters, whilst deserving of close analysis and consideration may not be sufficient, nevertheless, to warrant the exercise of the discretion available under s 10 of the Sentencing Procedures Act. If there were no further considerations, it might well be a close judgement call as to whether an appropriate case for the exercise of the discretion had been made out. In the present case there is an important additional consideration relating to Mr Girotto's health and mental condition. The detailed report of the consultant psychologist, Mr Laurence Fulton, was tendered without objection and he was not required for cross-examination. Because of the variety of personal matters raised in that report and possibly because of a reference in the report to certain concerns about Mr Girotto, an application was made to treat the report as a confidential exhibit and that was not opposed by the prosecutor. Having regard to the nature of the report, it has been dealt with only in general terms in recounting the evidence before the Court. It may be said, however, that Mr Girotto has been receiving continuing counselling for a period of 18 months and that counselling will continue into the future. Mr Girotto is aware that he has grief suppression issues and spoke of the significant distress he felt over the death of Mr Brown and how that has continued over a number of years. It seems clear that these issues did not commence with Mr Brown's death but may well have commenced with the death of Mr Girotto's mother and how he handled that loss: Mr Brown's death, however, appears to be an operative and on-going factor in a multi-factorial condition. It is sufficient to say that the report raises serious concerns about Mr Girotto's health and mental condition. The views expressed in the report, sometimes put tentatively, nevertheless leave the Court in the position that it would be not only inappropriate but irresponsible not to take into account those views. In this sentencing exercise it is to be remembered that, while a purpose of punishment is retribution, there are also many other and often contrary objectives of punishment such that notions of rehabilitation and mercy are not to be ignored. 72 Having considered all these matters in what might properly be described as a difficult aspect of the case, I have determined that it is appropriate that Mr Girotto be given the benefit of an order under s 10 of the Sentencing Procedures Act, but particularly because of the uncertainty of his future role in business, he should be placed on a good behaviour bond for a period of two years pursuant to the provisions of s 10(1)(b). ORDERS 73 In the matter of Girotto Precast Pty Ltd, IRC 151 of 2007: (a) the defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order to which the defendant pleaded guilty in Matter No IRC 151 of 2007; (b) the defendant is fined the sum of $215,000, with half that amount to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. In the matter of Giuseppe Girotto, IRC 152 of 2007: (a) without proceeding to conviction, the Court discharges the defendant, Giuseppe Girotto, on condition that he enter into a good behaviour bond for a term of two (2) years; (b) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS 1. The prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("OHS Act 2000") and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter. 2. Girotto Precast Pty Ltd (ACN 007 164 954) (Girotto Precast) is a company with its registered office situated at the AMP Centre Level 39, 50 Bridge Street, Sydney, New South Wales. 3. At all relevant times, Giuseppe Girotto was a director of Girotto Precast. Contractual Relationships at 10-16 Marquet Street, Rhodes 4. On 27 May 2004, Baseline Constructions Pty Ltd (Baseline) entered into a contract with Statewide Developments Pty Limited (Statewide) for construction of a large-scale residential construction known as the "Rhodes Bay Residential Development" situated at 10-16 Marquet Street Rhodes (the site). The site was divided into 4 zones (known as green, blue, red and yellow) and the buildings being erected were divided into sections each of which was known as a block and identified by the letters "A" to "K". 5. On 13 September 2004, Meinhardt (NSW) Pty Ltd (Meinhardt) entered into a contract with Statewide Developments Pty Limited (Statewide) for consultancy services which were defined in full in Schedule A to the contract. 6. On 13 September 2004, Baseline entered into a Deed of Novation with Statewide, as a consequence of which Meinhardt's contractual obligations (previously owed to Statewide) were novated to Baseline. 7. Baseline entered into a number of subcontract agreements for the provision of various works and services at the site. 8. Baseline entered into a subcontracts for: (a) the supply and manufacture of Hollowcore floor planks with Rescrete Industries Pty Ltd (Rescrete); and (b) the provision of tower craneage services for the site with Marr Contracting Pty Ltd (Marr). 9. On 12 November 2004, Baseline entered into a subcontractor agreement with Girotto Precast. The agreement relevantly required Girotto Precast to: (a) supply precast wall panels; (b) coordinate the delivery of the precast wall panels; (c) take delivery of Rescrete floor planks; and (d) erect the wall panels and floor planks. 10. On 26 November 2004, Girotto Precast subcontracted the work relating to the erection of the concrete wall panels and the Rescrete floor planks to Hi-Rise Erections Pty Ltd (Hi-Rise). 11. At all material times, the erection of precast wall panels and the Rescrete floor planks on the B Block green zone was performed by the following Hi-Rise employees: (a) Brendan Brown, director and site supervisor; (b) Shane Banks, leading hand; (c) Greg Lee, labourer; and (d) Daniel Reeves, labourer. 12. On the day of the incident, the following persons were employed by Marr to perform work at the site: (a) Glenn Immer, as a dogman working with the crew led by Brendan Brown; and (b) Terry Tutaki, as a tower crane operator. 13. At all material times, Baseline employed (amongst others) the following persons to perform work at the site: (a) Nelson Monica - Safety Manager; and (b) Peter Groenewegan - Construction Manager. 14. At all material times, Girotto Precast employed the following persons to perform work at the site: (a) Nevin Sweeney - Occupational Health and Safety Manager; (b) Andrew Bodman - Construction Coordinator; (c) Anthony Roth - Construction Coordinator; and (d) Robert Power - General Manager NSW. The Incident 15. On 8 February 2005, Hi-Rise were working with two erection crews located in different zones on the site. Work commenced at approximately 7am. 16. Scott Hellicar, Hi-Rise site supervisor, was in charge of the second erection crew working on J and A Block. Annexed hereto and marked 'A1' and 'A2' are drawings indicating the locations where the crews were working. 17. Brendan Brown (the deceased) was in charge of the relevant erection crew working on levels 2 and 3, B Block, green zone (which area is identified on the plans by grid references BL and BN). 18. A series of the Rescrete floor planks which are identified as MBG 6, 50, 51, 52, 54S, 55, 96S and 56S had been installed in the morning and early afternoon. These Rescrete floor planks varied in length from approximately 8100mm to 6000mm long and were, 1200mm wide and 200mm thick, weighing between 2 and 3 tonnes each. 19. A Rescrete floor plank is a concrete slab that is pre-stressed and designed to be self-supporting. It is of uniform thickness which contains largely continuous hollowcores. The Rescrete floor planks once installed provide a platform which is topped with concrete that has been reinforced with steel mesh. 20. Each Rescrete floorplank was put into position using a crane. Each of the precast elements (which include walls, floors etc) were connected according to a connection diagram initially using temporary and thereafter permanent fixtures to ensure the structural integrity of the building. 21. The connection diagrams were produced and supplied by Meinhardt pursuant to the consultancy agreement. 22. Earlier on 8 February 2005, prior to the installation of the Rescrete floor planks, Hi-Rise employees including Greg Lee had installed temporary supports to the precast walls, supplied by Girotto Precast, using "Z brackets" and timber. Annexed and marked 'B1' and 'B2' are two photographs showing examples of a Z bracket. 23. Rescrete noted in their shop drawing plan no M1677 B8 the method of using "z brackets" as temporary support. This method of temporary support was confirmed by Meinhardt by facsimile dated 31 August 2004. 24. Timber and where necessary packing had been placed on the Z brackets to ensure that the correct level for the Rescrete floor planks was achieved. 25. The Rescrete floor planks were lifted into their final position by cradling them in steel chains and landed in position with sufficient room (usually about 100mm) to remove the chains. Steel bars (also known as "bourke bars") were used to lever the Rescrete floor planks sideways into their final position in combination with timber levers from below. 26. When a Rescrete floor plank had to be moved lengthwise to achieve the correct bearing on the Girotto Precast walls or support, workers used a bourke bar from on top of the already positioned Rescrete floor planks to shift it into its correct position. 27. The process is slightly different for the last Rescrete floor plank to be positioned, as there is insufficient room for the steel chains to be removed. As such, the last Rescrete floor plank was lifted by drilling holes into the centre approximately 1 metre from each end of it, inserting a lifting plate and lug to which the chains from the crane were attached in order to lift it into position. 28. While trying to fit Rescrete floor plank MBG 53 (being the last to be positioned in the series), it was found that the Rescrete floor plank was too wide for the opening by approximately 15-20mm. Greg Lee was working with Brendan Brown on the floor below (level 2). Brendan Brown cleaned the 'concrete dags' off the bottom of the Rescrete floor plank using a long handled scrapper and attempted to install it again but was not able to do so. The plank had not been measured prior to being lifted from ground level. The weight of MBG53 was supported by the crane at this time. Brendan Brown and Greg Lee saw that the eastern "Z" bracket under floor plank MBG51 was on a lean. Brendan Brown directed Greg Lee to obtain an Acrow prop and Greg Lee left via the staircase to obtain it. 29. Whilst the Acrow prop was being obtained a decision was made to move Rescrete floor plank MBG53 and store it on adjacent Rescrete floor plank(s) that had already been positioned by the deceased. The exact location of the placement of MBG53 at this time is unknown but it was on or about MBG51 and MBG52. 30. Two pieces of timber (known as gluts) were placed on adjacent Rescrete floor plank(s) (MBG51 and/or MBG52). Plank MBG53 was placed onto the timber gluts and the lifting lugs were removed. 31. Approximately one or two minutes later, Rescrete floor planks MBG51, 52, 53 and 54S collapsed and fell causing Immer, Reeves and Banks who were working on the deck (level 3) to fall to the floor below. As a result Immer, Reeves and Banks sustained injuries. At the time Lee was descending an adjacent stairwell when he heard a crash. 32. Brendan Brown was supervising the three workers from the floor below. He was struck by one of the four Rescrete floor planks that collapsed and died as a result. Erection Process 33. Precast concrete construction is a method of prefabricating concrete elements such as wall panels and floor planks which are placed by a crane into position and incorporated into the building structure by the use of temporary supports until further in-situ works are undertaken to tie the precast elements into a permanent structure. 34. Precast walls and floor elements are connected together according to a detailed connection design. This connection detail should include temporary and permanent fixtures to ensure that the intent of the design meets the structural integrity of the building. Precast walls and floor elements are connected together according to a detailed connection design. This connection detail should include temporary and permanent fixtures to ensure that the intent of the design meets the structural integrity of the building. 35. Rescrete noted in their shop drawing plan no M1677 B8 the method of using "z brackets" as temporary support. 36. This method of temporary support was confirmed by Meinhardt by facsimile dated 31 August 2004. 37. In early September 2004, Rescrete sent Meinhardt another shop drawing M1677 A2 revision F, for their approval. Following instructions from Rod Wong, senior engineer, Glenn Reece draftsman for Meinhardt, included a note stating "Temporary 100x10 ea (equal angle) & M16 bolt max 600 spacing" which was sent back to Rescrete approved. 38. Subsequent revisions of all similar temporary support detail drawings included a note to similar effect. The drawing specifically relating to the incident area (M1677 B8 H at Section 10A) detailed a temporary support bracket and timber with the note "temporary 100x10 EA (equal angle) & M20 bolt max 600 spacing" as per "Meinhardt's" earlier notation. This plan was endorsed as being finally revised on 02.12.04. 39. The precast wall panels were designed and manufactured with ferrules. A ferrule is a cast in threaded fitting or insert into a precast element, such as wall panels or floor planks that allow a fitting to be screwed onto the element at a later stage in this case the temporary supports. 40. The temporary supports are a combination of "Z" brackets, plastic packers and timber. The Z brackets are connected to the wall panel through an M20 bolt and cast in 'ferrule'. A 'ferrule' is a steel component, typically of hollow tube shape, internally threaded and sealed at one end. The component is cast into concrete with the open end exposed at or near the surface to receive a compatible threaded bolt, allowing a steel element to be effectively connected to the concrete. Plastic packers and timber are placed on the Z bracket. The packer is being used to set the timber at the correct level to support the 'soffit' of the Rescrete floor planks. A 'soffit' is the underside of a horizontal structural member such as a beam or a slab. 41. The timber is shown on the Rescrete connection drawing details as the temporary support. Hi-Rise was responsible for the supply of hardwood (timber) for temporary support of hollowcore. There appeared to be no other measurement or specifications relating to the dimensions, grade and classification of timber to be used. 42. There were a number of "Z brackets" installed within the area Brendan Brown and his crew were working on 8 February 2005. The process for installation was described by Greg Lee and Scott Hellicar as follows: (a) the Z brackets are fitted to the precast walls by M20 bolt screwed into the cast in ferrules; (b) the "Z brackets" located at the end of each run are installed and levelled; (c) a chalk line is used to mark the soffit level of the Hollowcore floor planks along the precast wall; (d) the Z brackets along the run are placed in position and lined up with the chalk line; (e) the bolts holding the Z brackets are tightened using a rattle gun; and (f) packers are then be placed in the "Z brackets" with timbers on top of the packers to achieve the correct level. 43. The timbers that were used to support plank MBG51 were supplied to the site by Wideform Formwork and had previously been used as formwork at the Rhodes site. 44. The timber which supported plank MBG51 on the northern end of the structure measured approximately 92mm x 70mm in section, with an overall approximate length of 2145mm. The eastern end of the timber had a splay cut at an angle of approximately 28 degrees. At the time of the collapse, this end of the timber rested on the edge of a "Z bracket" by approximately 10mm. The western end of the timber had been splay cut at an angle of approximately 62 degrees and overhung the western` "Z bracket" by 270mm under Rescrete floor plank MBG50. 45. At all material times, no checks were made on the temporary supports by Baseline or Girotto Precast to ensure that they had been installed in a manner that would enable them to support the Rescrete floor planks during the erection process. It is not known whether Brendan Brown performed any checks on this area. 46. The process for installing Rescrete floor planks MBG51, MBG52, MBG53, MBG54S and MBG55 involved: (a) placing MBG51 and MBG55 into position first; (b) inserting steel angles which support MBG52, MBG53 and MBG54S; (c) placing MBG52 and MBG54S into position; and (d) lowering MBG53 into position. 47. Rescrete floor planks MBG 51 and MBG55 spanned a distance of approximately 8.1m and were located on the outside of three shorter Rescrete floor planks (MBG52, MBG53 and MBG54S). Rescrete floor planks MBG51 and MBG55 were designed to sit on the pre-formed Girotto Precast concrete walls located at the northern and southern end of B Block in the green zone. 48. The three shorter Rescrete floor planks (MBG52, MBG53 and MBG54S) were supported by two steel beams which were inserted at the northern and southern ends of the building. The three shorter Rescrete floor planks were located between two voids that would ultimately become the northern and southern staircases of B Block in the green zone. 49. Rescrete floor planks MBG52, MBG54S, MBG51 and MBG55 were placed into position by the crane with the use of chains. Once they were in position a void remained for the placement of MBG53. This void was intended to be the same size as MBG53. The expectation was that the length and width of MBG53 would be within a small tolerance the same as the void. 50. The lifting process of MBG53 was different to the other Rescrete floor planks previously mentioned, in that the chains could not be slung around the plank. The last Rescrete floor plank was lifted into position by drilling two holes in the centre of the plank approximately 1000mm from each end through which lifting devices are inserted. The chains from the crane were then connected to the lifting devices allowing the Rescrete floor plank to be lifted into position. 51. Once the final plank MBG53 was lifted into position it was found to be approximately 15-20 mm too wide for the opening. The system in place for dealing with an oversized plank was to land it on the deck adjacent to its final position and either jackhammer or saw cut it to size. There had been previous experience of oversized Rescrete floor planks at the site. These were dealt with by Hi-Rise without reference to Girotto Precast. 52. Previously, when a panel did not fit, it was left up on the platform and then jack hammered to size. Systems in place at the time of the incident 53. There were a number of systems of work in place on site for the management of occupational health and safety issues. The systems were promulgated by Baseline, Girotto Precast and Hi-Rise. 54. Baseline had a system of regular induction sessions with the subcontractors on site, which included a review of the subcontractors work method statements. Baseline took the view that as the erection process involved a number of parties, they saw a need for each party to know what the other subcontractors work methods contained. 55. Not all persons on site went through the induction process, in particular, Nevin Sweeney (Occupational Health and Safety manager for the First Defendant) and Tony Roth (Construction Coordinator for the First Defendant). 56. Girotto Precast employed Andrew Bodman and Tony Roth as Construction Co-ordinators. They were provided with general occupational health and safety induction training for construction sites otherwise known as the Green Card. 57. Girotto Precast's safety plan required that the Construction Coordinators facilitate the safe work method for the trade. However, it appears that Girotto Precast's coordinators had no involvement in that process. This process was carried out by Nevin Sweeney (Girotto Precast's Occupational Health and Safety & Environment Manager). 58. Hi-Rise developed a safe work method statement, which did not adequately cover the erection of Rescrete floor planks and did not cover the installation and specifications of the temporary supports to be used during the erection process. Girotto Precast assisted Hi-Rise by having its OHS Manager take down the work methods as Brendan Brown described them to him. 59. Baseline and Girotto Precast failed to identify an absence within the Safe Work Method Statements in relation to the installation of Rescrete floor planks. 60. Girotto Precast did not supervise the work being undertaken at the time of the incident. Neither of the two construction coordinators, nor the occupational health and safety manager who attended the site were present. 61. The First Defendant's OHS manager was to conduct weekly audits of the site and report any non-conformances to Robert Power, who in turn reported to the Second Defendant, the First Defendant and the board of directors. The First Defendant failed through the inadequacy of its audit process to provide and maintain a safe system of work for the installation and erection of floor planks MBG55, MBG51, MBG52, MBG53 and MBG54S at the site. 62. Baseline failed during the course of reviewing the work method statements, during the induction process and regular safety walks. 63. Baseline also prepared a Safe Work Method Statement for the site, which only dealt with the erection of precast wall panels, rather than the erection of precast floor panels. 64. Baseline required all subcontractors on site to partake in a toolbox talk at least once a month. Hi-Rise conducted toolbox talks at approximately weekly intervals. At all times, employees of Marrs were present during these talks. Baseline's attendance at these meetings was irregular and on the basis of the availability of Nelson Monica. 65. On 19 November 2004, Andrew Bodman attended a toolbox talk. During the period between 19 November 2004 and 5 January 2005, neither of the construction coordinators from Girotto Precast attended these talks. The only representation Girotto Precast had at those meetings was on 5 and 19 January 2005 when the OHS manager attended. 66. The toolbox talks on 5 and 19 January 2005 dealt with the issue of workers not wearing harnesses when working at heights. Baseline amended that system through the installation of new attachments. 67. However, following those meetings, both Girotto Precast and Baseline failed to ensure that the new system was being used. 68. The role of the Construction Coordinator was to ensure that any occupational health and safety issues were reported and addressed and to ensure compliance with Girotto Precast's safety management system. 69. Girotto Precast generally attended the site weekly to conduct safety audits of Hi-Rise's work and two to three times a week on panel delivery requirements. Through their visits, Girotto Precast reviewed the progress of the work undertaken and coordinated the delivery of the next set of panels. Girotto Precast had no direct input into the erection process or methods used by Hi-Rise in erecting precast panels. 70. From the available records, the last safety audit that Girotto Precast conducted took place on 31 January 2005. 71. Baseline sought to limit its role at the site to conducting safety inspections and audits to ensure that the subcontractors were complying with the work methods. Baseline believed that the subcontractors it engaged were experts. 72. No systems were in place to ensure safe work methods for dealing with oversized floor planks, particularly in relation to the location and storage of the floor planks. 73. Mr Chris Turner prepared an engineering report following the incident. This report appears at Tab 8 of the prosecution's sentencing folder and the defendants' consent to its tender. Systems of work implemented after the incident 74. A Prohibition Notice (144214) was issued to Baseline on 9 February 2005, requiring Baseline to: (a) Provide and maintain a safe system of work for the installation of pre-cast concrete floor panels. (b) Provide a report to WorkCover by a suitably qualified person specifying the structural integrity of the pre cast concrete flooring and walls in B Block. (c) Review the Safe Work Method Statement for the installation or pre cast concrete floor panels and provide a copy to WorkCover. 75. An Improvement notice (267311) was issued to Baseline on 8 February 2005 requiring Baseline to ensure persons carrying out the installation of pre-cast concrete floor panels are provided with adequate supervision by a suitably qualified person in accordance with the appropriate Safe Work Method Statement. 76. A Prohibition Notice (7-76318) was issued to Girotto Precast on 10 February 2005, requiring the following: (a) Provide and maintain safe systems of work for the installation of precast concrete floor panels. (b) Provide WorkCover a report by a suitably qualified person specifying the structural integrity of the precast concrete flooring and walls in B Block, level 3, Green Zone. 77. The Prohibition and Improvement Notices issued on Girotto Precast were complied with in a timely and appropriate manner. 78. Since the incident, the contract for the erection of the precast element has been awarded to MWA Constructions Pty Ltd. 79. Girotto Precast has ensured that the safe work method statement used by MWA Constructions includes a section on the erection of "Hollowcore" precast floor planks and the installation of temporary support angles and specifications of the timbers that are to be used in the temporary support. 80. An additional amendment to the safe work method statement is the inclusion of final positioning of floor planks which requires the following action: (a) In the event of a plank not fitting, the plank should be lowered back to the truck or to a designated area. (b) The adjustment of floor planks shall not be carried out from the area directly underneath the plank. (c) No person may be in the bay area directly underneath the plank when the adjustment is taking place. 81. Baseline has since implemented a number of procedures to improve safety in the erection of precast elements. Firstly, they have developed a written work procedure for areas similar to the location of the incident. 82. Further, additional subcontractor safe work procedure audit checklists have been introduced by Baseline to monitor the erection process. Co-operation 83. The Defendants have co-operated with WorkCover throughout its investigations into the matter. Prior convictions 84. Girotto Precast has a prior conviction – imposed on 7 April 2005 by the Chief Industrial Magistrate's Court – for a breach of section 8(2) of the Occupational Health & Safety Act 2000 (NSW) in relation to an incident at Menai in which a person fell approximately 3 metres from a ladder to a concrete floor below. The maximum penalty in relation to Girotto Precast is $825,000. 85. The second defendant has no prior convictions. The maximum penalty in relation to the second defendant, an individual, is $55,000. Plea of guilty 86. The Defendants each entered a plea of guilty to an amended charge immediately upon the amended charge being filed. oo00oo 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.