Industrial Court of New South Wales CITATION: Inspector Valdis Leinasars v Garry Owen Wilson [2006] NSWIRComm 317 PROSECUTOR: Inspector Valdis Leinasars PARTIES: DEFENDANT: Garry Owen Wilson FILE NUMBER(S): IRC 1207 of 2006 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - ss 8(1) & 26(1) - plea of guilty by director - working at height in demolition task - provision of harness rendered ineffectual by unsafe system of work - failure to enforce existing safety system - reliance on experienced supervisor - failure to properly instruct and supervise - injured worker rendered paraplegic - serious breach - failure of business - limited financial means and strict licensing requirements in new job not sufficient to warrant exercise of discretion under s 10 Crimes (Sentencing Procedure) Act 1999 - early plea and subject factors considered - penalty imposed CASES CITED: Inspector Cooper v Quik-Seal Pty Ltd and anor [2006] NSWIRComm 48) HEARING DATES: 25/09/2006 DATE OF JUDGMENT: 10/03/2006 PROSECUTOR: Mr D Chin of counsel SOLICITORS: Ms E Liddell WorkCover Authority, LEGAL REPRESENTATIVES: Legal Group DEFENDANT: Mr D Wetmore of counsel JUDGMENT: - 10 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 3 October 2006 Matter No IRC 1207 of 2006 INSPECTOR VALDIS LEINASARS v GARRY OWEN WILSON Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 317 1 On 8 October 2004, Garry Owen Wilson was the sole director of Wilson Group Holdings Pty Ltd a company involved in the demolition, excavation and re-cycling business. On that day, the company was carrying out demolition work at Blackhill Road, Blackhill. The work involved demolition of a number of farm buildings and was quite extensive. 2 On this particular day, the company engaged Greg Babbage as a labourer. Craig Nolan was also employed as a labourer to assist in the demolition work. The company employed Clinton Roberts as supervisor of the works and to assist also in the demolition work being undertaken by the company at this site. 3 During the morning of 8 October 2004, Mr Babbage and Mr Nolan were working on the roof of a shed when Mr Babbage suddenly fell through the sloping roof, falling a distance in excess of 4.5 metres. Mr Babbage was severely injured, breaking several vertebrae in his back and sustaining severe head injuries requiring extensive hospitalisation, numerous operations and occupational therapy. As a result of the fall Mr Babbage was rendered a paraplegic. 4 The accident was investigated by the WorkCover Authority after which it proposed to commence proceedings against the company alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000, and also to proceed against Mr Wilson as the sole director and a person concerned in the management of the company for breach of the same section by operation of s 26(1) of the Act. In May 2005, orders were made winding up the company and appointing a liquidator. Having been satisfied as to the circumstances of the company, the prosecutor did not proceed against the company but proceedings were pressed against Mr Wilson. 5 When the matter was first returned to Court for the taking of a plea and the making of appropriate directions, Mr Wilson appeared in person and an adjournment was granted. On the third occasion that the matter was listed, Mr Wilson was represented by counsel and a plea of guilty was entered. This judgment deals with the evidence and submissions on penalty. 6 The evidence for the prosecutor was comprised of a lengthy Statement of Agreed Facts together with a number of annexures dealing with work method statements and a site safety induction register. A number of photographs were tendered showing the general nature of the site and the particular area where Mr Babbage fell, together with a photograph of a harness and a rope with fittings attached. A WorkCover document confirmed that neither the company nor Mr Wilson had prior convictions. The Agreed Statement of Facts appears as an annexure to this judgment 7 Apart from tendering some day sheets indicating the nature of the system of work, Mr Wilson gave oral evidence concerning the business, his reliance on the site supervisor, Mr Roberts, and evidence as to his current employment and personal circumstances. 8 Mr Wilson said that the method of removing corrugated metal roof sheeting by removing most of the screws and leaving one row of screws was not a system of work performed on his instructions because of the danger presented by the possibility of high winds getting underneath the sheet metal. Mr Wilson had left this part of the demolition task to Mr Roberts who was the site supervisor with qualifications as a rigger, a dogger and a demolition supervisor as well as having his safety green card. In relation to the photographs of the safety harness, Mr Wilson said that he had brought this equipment to the site with each harness in a bag together with an absorption lanyard and a tie-off strap. The harness being used by Mr Babbage as shown in the photographs did not have an absorption lanyard and in Mr Wilson's view, it was not hooked up properly. He had given no instructions for persons working on this site to be hooked up in the way depicted in the photographs. The harness kits when brought to the site were complete as he described them and he had checked each such kit used at the site. He said he had relied on Mr Roberts to give training on the harness and had worked with Mr Roberts at three major sites where he was the supervisor on these sites. Mr Wilson had seen Mr Roberts working with harnesses and he appeared to be competent. He had seen Mr Roberts involved in toolbox meetings and he relied on Mr Roberts' competence and regarded him as more than competent and able to perform the task at this site. Mr Wilson had observed Mr Roberts perform a similar task at other sites and had no problem with his method of work. 9 Mr Wilson had not seen the ladder photographed at the site that was apparently used to gain access to the roof. He had not seen employees at the site using this ladder and if he had, he would have asked why they were not using the elevated scissor platform. 10 When he arrived at the site on the day of the accident, Mr Wilson did not see the ladder. He saw the scissors platform but was not aware that anyone was using it. He had obtained everything for the site required by Mr Roberts and had brought the scissors platform to the site as he believed it was essential to use it to get onto the roof to perform the demolition task. He believed that the lifting platform was being used by the workers on site. 11 An induction register was kept for the purposes of the business and to clarify the qualifications of employees when they came on site. The register was kept by the person in charge of the site that day. One example of the register had notations showing that persons had been sent from the site and had not been given a start either because had not brought evidence of their qualifications and green card, or they had no such qualifications. Mr Wilson expected the same approach to be continued by Mr Roberts. 12 Prior to this job starting, a work method statement had been created by Mr Wilson which he had not amended or varied after the accident. After the accident, he produced a further work method statement at the request of the WorkCover Authority but he maintained his satisfaction with the effectiveness of the document he had originally produced. That document had its origins in the requirements of a well known builder and he regarded the document as appropriate and effective. 13 Following the accident, the WorkCover Authority issued a stop work order and Mr Wilson abided by its terms. Ultimately, there were only two more days of work performed on the shed although there was other work to be performed. The company was then shut out of the contract and performed no more work at the site. Mr Wilson said that, as a result of this action, the company was placed in liquidation with debts amounting to approximately $100,000. The company lost approximately $200,000 in anticipated profits and ultimately he had lost the company and its business. 14 Mr Wilson had been at the site on average twice a week over a period of 14 weeks. During that time, he had not observed any unsafe working practices and he did not see any work that was not being performed in accordance with the work statement he had produced for the site. He continued in his belief that his original work statement was safe if it was followed. 15 Since the accident, Mr Wilson was no longer working in the construction industry and was now engaged as a heavy tow truck operator. He feared that his licence to perform this work would be suspended if he was convicted of an offence, including the offence to which he had pleaded guilty. If that occurred, he would have to get another job, although he did not regard himself as having other options since he had no other qualifications. In his current employment, Mr Wilson was earning $1,500 net per week although working in excess of 70 hours per week. He had been married for 16 years, had four dependent children and his wife did not work. 16 As to assets, Mr Wilson said that he had no personal assets and everything had been sold to satisfy the debts of the company. His wife had owned a house when they were married and had bought a new house by selling the previous house. All that property was in her name and she regarded it as her property. There were other debts being serviced at the rate of approximately $600 per week and Mr Wilson was paying the mortgage on the house of approximately $1,200 per month. DELIBERATION 17 It was submitted by the prosecutor that this was a serious offence carrying a maximum penalty of $55,000. The system of using the harness meant that ,in order to move from place to place on the roof, the rope had to be untied leaving the employee wearing the harness vulnerable to a fall. In addition the system allowed up to 6 metres of rope to be used when there was a risk of falling 4.5 to 4.9 metres. That length of rope used in that manner rendered the safety harness ineffective in preventing or restraining a fall. In addition the Statement of Agreed Facts showed that Mr Wilson had demonstrated to Mr Roberts how to secure the lanyard and rope which was the system, in fact, used at the site and which was shown to be defective. It was clear from the photographs that Mr Babbage was found on the ground with the entire length of rope and therefore it had not been secured on the roof as was envisaged by the written system. In addition, Mr Babbage had not been trained in the use of the harness. The work method statements required harnesses to be kept connected, however, the actual system left them from time to time unattached and of no practical utility. It was this combination of circumstances, it was submitted, that rendered the breach a serious offence which was readily foreseeable and easily remedied. 18 Mr Wilson's reliance on the expertise of Mr Roberts was misplaced and he clearly acted in disregard of the work method statement in a way not corrected by Mr Wilson. 19 I agree with the thrust of these submissions for the prosecutor. The breach to which Mr Wilson has pleaded guilty accepted that the company failed to: provide a system of work for working at heights that was safe and without risk to the health and safety of its employees; conduct any, or adequate, risk assessment to ensure the health, safety and welfare of employees whilst working at heights; provide any or adequate information to employees; to provide any or adequate instruction and training to employees; to provide any or adequate supervision to its employees; to ensure that the employees had safe access to and egress from their place of work and, in particular, the roof of the shed; ensure that any plant provided for use by the employees at work was safe; ensure that safety harnesses provided for use by the employees were connected to an anchorage at all times and, in particular, whilst working at heights and while the employees had access to and egress from the roof of the shed; to provide employees any or adequate health and safety induction training in the use of safety harnesses and ensure that the safety harness lanyards, provided for use by the employees at work, was of a length sufficient to ensure the safety of employees while working at heights. Considering the nature of the work, these were multiple failures that presented very serious risks to the workforce engaged in this demolition task. The injury received by Mr Babbage was severe and provides some evidence of the nature of the risk - it is also possible that he could have lost his life. All of the circumstances referred to above mark this accident as constituting a serious breach of the Act. 20 The building and construction industry is, by its very nature, an industry where workplace risks abound and where employees and employers are required to be vigilant in ensuring not only the existence of safe working systems but their enforcement. In the present case, while there were systems that addressed safe working methods, the evidence strongly points to a conclusion that the system was not effectively enforced. General deterrence will necessarily pay a significant part in setting the penalty for this breach. 21 The issue of specific deterrence requires some closer examination in this particular case. I accept the thrust of Mr Wilson's evidence to be that the circumstances surrounding the accident to Mr Babbage and his exclusion from the remainder of the contract not only resulted in the failure of the company but enforced his view that there was no place in that industry for him in the future and that his best employment options would be continuing as a heavy tow truck operator. Having regard to the evidence as to his financial position, I am satisfied that for the foreseeable future, if at all, it is highly unlikely that Mr Wilson will again be engaged in the building and construction industry in any capacity and, in particular, as a director engaged in the management of a company performing work in that industry. Specific deterrence will therefore bear little on the assessment of a penalty for this breach. 22 The oral evidence of the financial position of Mr Wilson was not supported by any financial records or professional report: that position may also reflect his meagre means. The Court is aware that at least one adjournment was granted while Mr Wilson made enquiries as to what legal representation was available to him. The provisions of the Fines Act 1996, nevertheless, require the Court to take into consideration the evidence that is brought forward and it is significant that the prosecutor did not cross-examine Mr Wilson on his financial situation. I have no reason to doubt the general thrust of this evidence, but I also accept that this material should not operate so as to detract from the objective seriousness of the offence. While the evidence does indicate the meagre financial means of Mr Wilson, it does not establish that any fine would be crushing in its nature and effect. The circumstances of Mr Wilson, nevertheless, will be taken into consideration in the setting of a penalty. 23 In relation to subjective factors, both the company and Mr Wilson have no previous convictions indicating a good industrial record, although there was no evidence of the size of the company, its operations or for how long it had operated. I accept the guilty plea was entered at an early stage and there is no reason why Mr Wilson should not receive the full benefit of that plea and a discount of 25 per cent will be allowed on the penalty. 24 While much emphasis was placed by Mr Wilson on the expertise and experience of the site supervisor Mr Roberts, and the fact that there was a departure from the established safety system, those matters only operate, however, in a relatively minor way in affecting Mr Wilson's culpability. A number of Full Benches of this Court have pointed out that while these matters are relevant to culpability, the Act requires employers to be diligent in ensuring the safety of their employees and that those obligations were not diminished because of an error by an employee. It is only in this context that those matters heavily relied on by Mr Wilson will be considered in mitigating the penalty. 25 An application was made for Mr Wilson to be dealt with under the provisions of s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and that an order should be made discharging him on condition that he enter into a good behaviour bond for a term not exceeding two years. The primary reason advanced for the exercise of the discretion was that the statutory scheme governing the issuing of a licence for those engaged in the tow truck industry meant that any conviction placed Mr Wilson's employment at risk and left him with very little option for alternative work other than labouring and other unskilled or semi-skilled work. During a short adjournment, the parties were able to put before the Court the provisions of the Tow Truck Industry Act 1998. It appears from s 18(2) that a mandatory ground for refusing to grant an application for a licence includes the fact that an applicant has, within a period of 10 years before the application for the licence was made, been convicted or been found guilty with no conviction being recorded by a court in New South Wales but only in relation to an offence prescribed by the Regulations. Regulation 7 prescribed certain criminal behaviour but made no reference to the provisions of the Occupational Health and Safety Act 2000. It appears, therefore, that any conviction or bond imposed by this Court for a breach of s 8(1) of the Occupational Health and Safety Act 2000 will have no bearing in relation to the operation of s 18(2) of the Tow Truck Industry Act 1998. It was accepted that a licence was usually issued for one year and that the statutory scheme treated an application for renewal of a licence as raising the same considerations found in s 18(2) but, for the reasons already outlined, it appears that Mr Wilson is at no risk of having his licence renewal refused on that ground because of a conviction in these proceedings. 26 Counsel for Mr Wilson also pointed to the provisions of s 18(3) whereby a discretion could be exercised in the granting or renewal of a licence such that it may be refused if the applicant was a not a fit and proper person to hold such a licence. It was submitted that the conviction, or even a bond imposed by this Court, would raise Mr Wilson's fitness to remain within that industry. There was no evidence as to how this discretion had been exercised and whether convictions of this nature were considered in assessing the fitness of a person to have a licence renewed. Here, it was submitted that Mr Wilson should be left in the best possible position to retain his licence and that, in all the circumstances, it would be appropriate for the s 10 discretion to be exercised. 27 I accept that there are times when the combination of personal circumstances of a defendant might warrant the exercise of the s 10 discretion (see Inspector Cooper v Quik-Seal Pty Ltd and anor [2006] NSWIRComm 48). I am not satisfied that Mr Wilson is in serious danger of losing his current livelihood because of a conviction for this breach whether recorded or not. This offence involves no element of dishonesty and essentially arises from a failure to enforce a safe system of work including the system that was devised by Mr Wilson himself. This concern, together with his financial position such as is described in the evidence, in my view does not warrant the making of an order under s 10. While I accept the meagre financial means of Mr Wilson, any difficulty encountered in meeting the fine that will be imposed might appropriately be met by an application for time to pay and to pay the penalty by way of instalments. For those reasons the application for an order under s 10 is refused. ORDERS 28 Having considered the variety of matters raised by the evidence and submissions, the Court makes the following orders: 1. The defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 by operation of the provisions of s 26(1), a breach particularised in Matter No IRC 1207 of 2006 to which the defendant has pleaded guilty. 2. The defendant is fined the sum of $9,000 with half that sum to be paid to the prosecutor by way of moiety. 3. The defendant is to pay the costs of the prosecutor in a sum agreed or in the absence of agreement, as ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS 1. At all material times, Inspector Valdis Leinasars of the WorkCover Authority of New South Wales, Suite 7C, 19 Mitchell Drive, Greenhills in the State of New South Wales was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (NSW) ("the Act") and empowered under Section 106 of the Act to institute proceedings in this matter. 2. At all material times Wilson Group Holdings Pty Ltd (In Liquidation) (ACN 109 809 672) ("WGH") was a company duly incorporated and whose registered office was situated at 51 Bullecourt Avenue, Engadine in the State of New South Wales. 3. At all material times GARRY OWEN WILSON of 51 Bullecourt Avenue, Engadine in the State of New South Wales ("the defendant") was the sole director and a person concerned in the management of WGH. 4. At all material times WGH operated a demolition, excavation and recycling business ("the business"). On 8 October 2004, WGH was carrying out demolition work in connection with the business at 337 Blackhill Road, Black Hill New South Wales ("the premises"). 5. The premises consisted of a number of farms on which sheds and other farm buildings were located. WGH had entered into an agreement with the Trustees of the Roman Catholic Diocese of Maitland Newcastle, the owner of the premises, under which WGH dismantled and removed the sheds from the premises, and then sold the resultant materials. The Diocese obtained a share of the proceeds from the sale of the materials by WGH in excess of $450,000. 6. At all material times from on or about 1 October 2004 WGH employed Mr Greg Babbage as a labourer to assist in the demolition work undertaken by WGH at the premises. Prior to 1 October 2004 Mr Babbage had not worked for WGH or any other company managed by the defendant. Prior to his employment with WGH, Mr Babbage was employed as a "ganger" by Telstra and had no prior experience with working at heights or working with the use of safety harnesses. 7. At all material times from on or about 1 October 2004 WGH employed Mr Craig Nolan as a labourer to assist in the demolition work undertaken by WGH at the premises. For approximately 2 months prior to this, Mr Nolan had been working at the premises in his capacity as a sole trader, (trading as Stone River Inc) as a sub contractor to WGH, stripping the insides of sheds and dismantling the frames at the site. 8. At all material times from on or about 1 October 2004 WGH employed Mr Clinton Roberts as Supervisor to assist in the demolition work undertaken by WGH at the premises. Mr Roberts had previously completed a demolition supervisor's course at NSW TAFE and had "on-the-job" experience in previous jobs in which he was employed as a supervisor by companies that were managed by the defendant. 9. Between 6.00am and 8.30am on 8 October 2004, Mr Babbage and Mr Nolan, were dismantling Shed 5 at Farm 9 (Shed 5) at the premises. 10. Shed 5 was approximately 72 metres long and approximately 11 metres wide. The shed had a corrugated metal gabled roof. Sandwiched between the corrugated metal roof and purlins was a layer of sarking. The roof's single ridge projected along the entire length of the shed in an east to west direction. The ridge of the roof was approximately 4.9 metres above ground level. The roof sloped down to approximately 3.26 to 3.32 metres above ground level at the roof's eave edges. From the ridge to the edge, the slope of the corrugated metal roof was over 6 metres in length. 11. During several days leading up to 8 October 2004, Mr Babbage and Mr Nolan had removed the majority of "Teks" (self-drilling and self-thread tapping) screws, which fastened the corrugated metal sheeting to the purlins on the roof of Shed 5. They left approximately one row of screws intact. These screws were to be removed as they removed the corrugated metal sheeting from the roof. 12. On the morning of 8 October 2004, Mr Babbage and Mr Nolan were working on the east end of the roof of Shed 5. As they progressed westward, they were removing the corrugated metal sheets (up to approximately 6040 mm by 840 mm in size) and sarking from the roof's southern sloping side. Once unfastened, they manually lowered this material over the roof's southern edge onto the ground. During this process Mr Nolan was working on the low end of the south sloping roof and Mr Babbage was working along the roof's ridge. They were about to go for a break when Mr Babbage suddenly fell through the northern side of the sloping roof along the roof's ridge. The opening in the roof through which Mr Babbage fell was between approximately 4.65 metres and 4.9 metres above ground level. He landed on the shed's floor of well-compacted soil. 13. Mr Nolan heard Mr Babbage scream and ran to the top of the roof. He then descended, called for an ambulance and immediately attended to Mr Babbage. 14. Mr Nolan observed: a. Mr Babbage lying on the ground immediately beneath ` an opening in the roof. He had two sheets of corrugated metal sheeting resting on top of him; and b. Mr Babbage wearing a harness. However, the entire length of the harness lanyard, including its free end, was lying on the ground next to Mr Babbage. 15. As a result of the fall, Mr Babbage broke several vertebrae in his back and sustained severe head injuries requiring extensive hospitalisation, numerous operations and occupational therapy. As a consequence of the fall, Mr Babbage is a paraplegic. 16. Immediately prior to Mr Babbage's fall through the roof: a. The ridge cap on the roof had already been removed; and b. The entire length of the north sloping side of the roof was still clad with corrugated metal sheeting. 17. Before the incident: a. WGH had provided Mr Babbage and Mr Nolan each with an individual fall arrest device, namely a parachute-style safety harness with a rope lanyard, for working on the roof of Shed 5. b. The safety harness was generally tied off along the roof's ridge where the roof's trusses were partially exposed. However, in order to access and exit the work area, and to move to different areas on the roof, Mr Babbage and Mr Nolan had to untie their safety harnesses and then retie them at some other point. c. There was no static line installed on the roof to enable horizontal movement along the length of the roof with the harness lanyards attached. Only one rope lanyard was provided for each individual harness. As a result the safety harnesses were not always attached to an anchor point. d. To restrict or arrest vertical falls, a one way sliding cam or wedging mechanism was threaded onto the safety harness lanyard. With the lanyard configured appropriately the intent was that, as one moved up and down the roof, the lanyard could be shortened or lengthened respectively by manually depressing the one-way sliding mechanism. However, this was not always done and the potential existed for Mr Babbage to have a lanyard of approximately 6 metres in length in circumstances where the height of the roof to the floor was approximately 4 to 5 metres. 18. The safety harness that Mr Babbage was wearing leading up to and at the time of the incident did not have an energy absorber attached to the lanyard. 19. Prior to 1 October 2004, Mr Nolan and Mr Babbage had no previous experience working on roofs or in the use of a fall arrest system such as the safety harness. 20. Mr Babbage and Mr Nolan received minimal instruction and no training in fall arrest systems. Apart from telling Mr Babbage that the safety harness should be tied off along the roof's ridge, Mr Roberts did not give Mr Babbage any training in the use of the safety harness. The defendant did not give Mr Babbage any training in the use of the safety harness. The defendant relied upon Mr Roberts, believing him to be an experienced and competent supervisor, to provide such training. 21. Prior to commencing work on Shed 5, Mr Roberts, Mr Babbage and Mr Nolan discussed what was required to be done and that use of the harness was required. 22. While the defendant told Mr Nolan how to unfasten the corrugated metal sheeting from Shed 5, how to use a safety harness and the need to tie the harness lanyard off on top of the roof; the defendant did not show Mr Nolan how to perform the task or how to tie off his safety harness lanyard. The defendant relied upon Mr Roberts, believing him to be an experienced and competent supervisor, to provide such instruction. 23. Prior to the incident on 8 October 2004, Mr Roberts' training in the use of safety harnesses was limited to: a. The defendant showing him how to secure safety harness lanyards on a timber truss roof when they had previously worked on a residential house roof. (This method was the same method that was used by Mr Nolan and Mr Babbage to secure the safety harness lanyards to the roof trusses on Shed 5.); and b. Boom type elevating work platform training that required Mr Roberts to clip the safety harness lanyard to the boom basket. Mr Roberts nevertheless had on-the-job experience working with the defendant during 2001 and 2002 dismantling various building structures without incident. 24. Leading up to and at the time of the incident, Mr Babbage and Mr Nolan were permitted to continue working on the roof of Shed 5 when: a. A ladder was used to gain access to and egress from the shed roof (although an elevated work platform was available on the premises prior to, but not on the day of, the incident); and b. There was no system in place to ensure that while they were on the roof and working across the roof surface their safety harnesses via the lanyards were attached to anchor points at all times. The defendant relied upon Mr Roberts, believing him to be an experienced and competent supervisor, to provide such supervision. 25. The Occupational Health and Safety Regulation 2001 (NSW) ("OH&S Regulation") in Chapter 8, "Construction Work", clause 209(c) defines construction work at a height of above 3 metres as "high risk construction work". The work undertaken to remove the corrugated metal sheeting from the roof of Shed 5 leading up to and at the time of the incident involving Mr Babbage on 8 October 2004 was undertaken at heights of above 3 metres. 26. Under clause 227 of the OH&S Regulation, the principal contractor, which WGH was, had the responsibility to ensure that safe work method statements were developed and maintained for the work to be carried out on roof of Shed 5. 27. After the incident, the defendant provided a document titled "Project: Black Hill, Contractor: Stone River, Work Method Statement" ("the Work Method Statement") to the WorkCover Authority of New South Wales ("WorkCover"). Annexed hereto and marked with the letter "A" is a copy of the Work Method Statement. He also provided the following documents which WGH had adopted for the job at the premises prior to the incident: a. "Demolition & Excavation Sydney, Tanly De & Ex Pty Ltd, ABN 32 097 154 571, Work Method Statement for Project Demolition of Shed and House Black Hill Project, Project Manager Garry Wilson, Tel. 04082283211, Project Supervisor Clint Roberts, Tel. 042521566." This document detailed generic health and safety induction requirements and did not detail relevant codes of practice, which were specific to the hazards at the premises. b. "Site Specific Induction – Register, 66 Central Road, Avalon." While Mr Babbage's name and emergency contact details appeared on this document, he had not received General or site specific OH&S Induction Training. 28. While Mr Nolan was engaged as a sub contractor at the site, the defendant had asked him to submit a work method statement and quote to dismantle/demolish sheds on Farm 9. Subsequently Mr Nolan prepared, possibly with the assistance of Mr Roberts, the Work Method Statement. 29. At the time Mr Nolan had not worked on roofs and had no experience in developing and writing up safe work method statements. After he signed the Work Method Statement on 7 August 2004 shortly after commencing at the site as the sub contractor, Mr Nolan did not see the document again. Both Mr Nolan and Mr Babbage have stated that it was not Mr Babbage's signature that appeared next to his name "Greg Babbage" on the first page of this document. Mr Babbage states that he had never seen the Work Method Statement before the incident on 8 October 2004. 30. WorkCover issued one Prohibition Notice and six Improvement Notices to WGH as a result of its investigation into the incident on 8 October 2004. 31. In response to these notices, WGH undertook the following: a. Re-assessed its fall arrest systems for person working on poultry shed roofs at the premises; b. Developed and implemented a document titled "Wilson Group Holdings Pty Ltd, Work Method Statement for Setting of Safety Line for Roof Work, Farm No.2 Shed No.B". This safe work method statement specifically detailed the sequential tasks for installing a static line system on Shed B at Farm 2. The static line was installed along the entire ridge length of the shed roof. This was done to enable persons to attach their safety harness lanyards to an anchorage at all times where they accessed, exited and worked across the roof surface. This document also included, but was not limited to: i. Potential hazards, risk and appropriate control measures for each work task; and ii. Reference to specific Codes of Practice: "Safety Line Systems and Working Roofs Part 1" iii. Requirement for persons to hold certain qualifications, ie as riggers; and iv. Was dated 18 October 2004 and signed off by the supervisors and employees of WGH. c. Developed a document titled "Wilson Group Holdings Pty Ltd, Work Method Statement for safe use of Inertial Reel Systems". This safe work method statement specifically detailed the procedure, including potential hazards, risk and control measures, for the use of inertia reels in fall arrest systems using static lines and fixed anchorage points; d. Re-assessed its procedure for removing the roof sheeting and insulation from the poultry sheds at the premises and developed and implemented a work method statement for removing roof sheeting; e. Reviewed its OH&S site induction and site safety rules documentation, and updated its site safety register; f. Developed and implemented training documents and provided further safety training to its employees in particular in the use of safety harnesses attached to static lines; g. Put in a system to ensure that the relevant OH&S documents were available for workers at specific jobs on the premises; and g. Developed and implemented a supervisor's safety check list. 32. On 2 May 2005, a court order to wind up WGH and appoint a liquidator was made. The notification of appointment of liquidator by the court was made on or about 5 May 2005. WGH is now in liquidation and the presentation of accounts and statement of accounts of winding up was received by the Australian Securities and Investment Commission on or about 10 November 2005. 33. At all material times the defendant, the sole director of WGH, was in a position to influence the conduct of work activities and occupational health and safety matters undertaken by WGH at the premises. In particular, the defendant had: a. negotiated the terms and conditions of employment with Mr Babbage and Mr Nolan (while Mr Roberts participated in hiring and had responsibility for inducting WGH employees); b. instructed Mr Roberts, the WGH supervisor, to allow Mr Babbage to commence working on the poultry sheds at the premises, and relied upon Mr Roberts to induct Mr Babbage; c. provided Mr Roberts with the induction documents referred to above; d. instructed Mr Nolan in the method of removing the roof sheeting from Shed 5 at the premises; e. provided the equipment and instructed Mr Roberts in the fall arrest system to be used for persons working on the roof of Shed 5 at the premises; and f. attended the premises 2-3 times a week to check on the progress of the demolition work and pick up loads of the material for delivery. 34. By operation of section 26(1) of the Act, the defendant contravened s 8(1) of the Act by reason of the defendant being a director and a person concerned in the management of WGH in that WGH, being an employer, on 8 October 2004 at the premises failed to ensure the health, safety and welfare at work of its employees, and in particular Mr Greg Babbage, contrary to section 8(1) of the Act. 35. In the premises, WGH failed to: a. Provide a system of work for working at heights that was safe and without risks to the health and safety of its employees; b. Conduct any, or adequate, risk assessment as was necessary to ensure the health, safety and welfare of its employees whilst working at heights; c. Provide any, or adequate, information to its employees as was necessary to ensure their health and safety at work whilst working at heights; d. Provide any, or adequate, instructions and training to its employees as was necessary to ensure their health and safety at work whilst working at heights; e. Provide any, or adequate, supervision to its employees as was necessary to ensure their health and safety at work whilst working at heights; f. Ensure that its employees had safe access to and egress from their place of work, and in particular, the roof of Shed 5/E Farm 9 at the premises; g. Ensure that any plant provided for use by the employees at work was safe and without risks to health when properly used; h. Ensure that safety harnesses provided for use by the employees were an anchorage at all times, and in particular whilst working at heights and while the employees accessed and egressed from the roof of Shed 5/E Farm 9, as was necessary to ensure their health and safety. i. Provide its employees any, or adequate, health and safety induction training into the use of safety harnesses; and j. Ensure that the safety harnesses lanyard, provided for use by the employees at work, was of a length sufficient to ensure the health and safety of its employees whilst working at heights. 36. The defendant, however, provided safety harnesses and the induction documents referred to above; and the defendant relied upon Mr Roberts, believing him to be an experienced and competent supervisor, to provide adequate information, training, instruction and supervision to Mr Babbage. 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.