Inspector Steven Nikolovski v Dennis Sewell [2010] NSWIRComm 26

Industrial Court of New South Wales

CITATION: Inspector Steven Nikolovski v Dennis Sewell [2010] NSWIRComm 26

Prosecutor: WorkCover Authority of New South Wales PARTIES: Defendant: Dennis Sewell

FILE NUMBER(S): 1025 of 2007

CORAM: Backman J

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000

Inspector Braddick v Connex Sydney Pty Ltd (known as Veolia Transport Sydney Pty Ltd) [2007] NSWIRComm 208 Inspector Dimitri Barlas v C&J Carpentry & Constructions Pty Ltd and Others [2009] NSWIRComm 127 CASES CITED: Inspector Stephen Charles v Premier Precast Pty Limited [2009] NSWIRComm 136 Inspector Steven Nikolovski v Northpac Constructions Pty Limited and Anor [2009] NSWIRComm 204 SZ v The Queen (2007) 168 ACrimR 249

HEARING DATES: 5/6/2009

DATE OF JUDGMENT: 2 March 2010

PROSECUTOR: Mr P Skinner, of counsel LEGAL REPRESENTATIVES: Solicitors: DLA Phillips Fox Lawyers (Mr C Nichol)

DEFENDANT: Mr D Sewell, self-represented

JUDGMENT:

- 9 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Backman J

2 March 2010

Matter No IRC 1025 of 2007

INSPECTOR STEVEN NIKOLOVSKI v DENNIS SEWELL

Prosecution pursuant to section 9 of the Occupational Health and Safety Act 2000

JUDGMENT OF THE COURT [2010] NSWIRComm 26 1 Dennis Sewell has pleaded guilty to one offence under s 9 of the Occupational Health and Safety Act 2000. The charge against Mr Sewell was that on 22 June 2005, at 300-306 Canterbury Road, Canterbury in New South Wales, he, being a self-employed person, failed to ensure that persons not in his employment, in particular, Daryl Sadler, were not exposed to risks to their health or safety arising from the conduct of Mr Sewell's undertaking while at his place of work. 2 The particulars of the contravention were set out in the body of the charge as follows: 1 Failed to ensure that adequate fall protection measures were in place for bricklayers working on level 3 of the premises; 2 Failed to adequately supervise work performed on the premises so as to prevent bricklayers from working in an area without adequate fall protection; As a result of the said failures, Daryl Sadler was exposed to risk of injury. 3 The prosecutor's brief of evidence provided for the purposes of the sentencing hearing did not include a Statement of Facts or a Statement of Agreed Facts. The Court was advised that it could rely on the material set out in the affidavit in support of the application for order. The relevant facts have also been set out in an earlier judgment which dealt with the liability of two co-defendants, both of whom entered pleas of not guilty: Inspector Steven Nikolovski v Northpac Constructions Pty Limited and Anor [2009] NSWIRComm 204. For convenience, some of the factual background common to all defendants, including Mr Sewell, may be relied upon in the present proceedings. The relevant parts of that judgment are set out below: [1] ... On 22 June 2005 at 300-306 Canterbury Rd, Canterbury [...] a number of workers were assisting in the construction of a north-western wall at the premises. Daryl Sadler, a 41 year old bricklayer, was performing bricklaying services at the premises, having been contracted verbally to do so by Dennis Sewell, a sole trader also working at the site. At about 2.40pm on the day, Mr Sadler was assisting in the construction of the north-western wall on level three when the wall blew over during a gust of wind. Mr Sadler attempted to push against the collapsing wall, but overbalanced and fell off the edge of the building approximately 2.5m onto scaffolding on the lower level of the building. Other workers in the vicinity at the time managed to escape the collapsed wall. At the time of the accident scaffolding had not been raised from level two to level three in the area where Mr Sadler fell. Mr Sadler was taken to St George Hospital. He suffered fractures to his vertebra at lumbar 1-3 and injuries to his knees and shoulders as a result of the fall. [2] At the time of the accident Mr Sewell operated his own business, Combined Brick and Block Laying. The business was a bricklaying business which provided the services of Mr Sewell and contractors such as Mr Sadler, Greg Ramsay, Robert Stewart and Steve Helmsley, all of whom were contracted to erect brick work and block work at the premises. According to Mr Sewell, he had a verbal contract with "Northpac Constructions" to perform the services. 4 As I pointed out in that earlier judgment, there was an expectation on the part of the bricklayers that the scaffolding would be lifted to the balcony area on level three to provide them with adequate fall protection while working on the floor slab and constructing the walls on that level. Mr Sewell gave evidence for the prosecution during the proceedings against Northpac Constructions and Mr Commisso. Mr Sewell was asked why the scaffolding had not been erected in the balcony area of level three, where Mr Sadler was working at the time of the accident. He responded: It's an absolute mystery to me. On that particular day, as I said the scaffolders were there for the express purpose of lifting the scaffold from level 2 to level 3 and yet they were allowed to leave the site at midday without completing, as I say, the work in its entirety. Whereas there were only 30 minutes to one hour's work remaining and at that [sic] had they stayed and completed the work we wouldn't be having this discussion today. 5 According to the affidavit in support of the application for order against Mr Sewell, at the time of the accident Mr Sewell was working on the ground floor and was not supervising his contractors. This is because he expected the site manager for Northpac, Mr Commisso, to provide supervision. In his evidence given during the proceedings against Northpac and Mr Commisso, Mr Sewell said that he had not been up to level three where Mr Sadler and the other bricklayers were working on the day of the accident. He had been up there on the previous day. He also said construction of the brick wall on level three had commenced on the day of the accident at about 10am. 6 At the time of the accident, the brick wall had been partially constructed. The external wall had been completed and Mr Sadler had commenced constructing the internal wall at the time of the accident. Witnesses estimated the height of the collapsed wall at that time at 2.2 metres. The length of the wall was estimated to be 9.58 metres. 7 The newly constructed wall was referred to as a "green" wall, that is, the mortar had not fully set and it was by definition inherently unstable. According to the affidavit in support of the charge, two truck loads of bricks had been delivered to the site on the day of the accident and were stockpiled in the area where the bricklayers were working. The bricklayers were therefore restricted by the stockpiled bricks as to the area in which they could work. Northpac was responsible for supplying the perimeter scaffolding at the site. As identified by Mr Sewell, the scaffolders were on site on the day of the accident for the express purpose of lifting the scaffolding from level two to level three. They left, inexplicably, before the scaffolding was raised to the area where Mr Sadler and the other bricklayers were working at the time of the accident. Both Mr Sadler and Mr Ramsay had asked Mr Commisso on the morning of the accident to raise the scaffolding to level three so that they could undertake the work. 8 It follows from this that Mr Sewell had an expectation, reasonably held in the circumstances, that the scaffolding, which had been partly raised to level three on the day of the accident, had also been raised to the area on level three where the bricklayers were working at the time of the offence. 9 In oral submissions during the sentence proceedings, the prosecutor conceded that the responsibility to ensure the scaffolding was erected belonged to the builder, that is, Northpac Constructions. It was also acknowledged by the prosecutor that the bricklayers who were sub-contracted to perform the work, had between them some 100 years of bricklaying experience and were otherwise highly qualified and experienced workers on construction sites. It was further acknowledged by the prosecutor that Mr Sewell and the bricklayers had a legitimate expectation that the scaffolders, who were contracted to erect the scaffolding on the day of the accident, had in fact completed the work at some stage before the bricklayers commenced work in the area where the wall collapsed. (It should be explained, by way of clarification, that according to the affidavit in support of the application for order, the height of the collapsed wall was estimated to be between one metre and 2.2 metres.) 10 Mr Sewell, in submissions, informed the Court that he believed that adequate supervisory measures were in place on the day of the accident. The established procedure was that if he were absent, then the site manager and the leading bricklayer (Mr Ramsay) would make all relevant decisions concerning the bricklaying work. He said that when he was present he had full responsibility for supervision. He also said that when he was on the ground floor at around the time of the accident (or otherwise not at the precise same location as the bricklayers at any given time), the means of communication, by way of mobile telephone, was established in order for the bricklayers to relay to him any concerns they had or any input they may have required from him about the work. 11 Taking these matters into consideration, it is open to conclude that Mr Sewell not only had a reasonable expectation that the scaffolding had been fully erected at the time of the accident, but he had also put in place supervisory measures, that is, ongoing communication by way of mobile phone with the workers on level three. These matters, in my view, confine Mr Sewell's failures under s 9 of the Act to a failure to check or enquire, during some relevantly short period of time during the day after the scaffolders had commenced to erect the scaffolding, as to whether the scaffolding had been fully erected to the area where the bricklayers were working at the time the wall collapsed. They relegate the offence against Mr Sewell to a less serious category than might otherwise have been the case. 12 In oral submissions, the prosecutor briefly addressed a number of objective factors. With regard to general deterrence, it was said that it was important because the construction industry is a dangerous industry. This is an uncontroversial proposition with which the Court can only express agreement. I adopt and apply my observations as to the importance of general deterrence as a sentencing principle in cases where the relevant risk to safety is a fall from height in Inspector Dimitri Barlas v C&J Carpentry & Constructions Pty Ltd and Others [2009] NSWIRComm 127 at [16]: Falls from heights in the workplace are a common and regrettable feature of the failure to implement adequate safety controls in the workplace. They often result in serious injuries, even fatalities. Just as often, the institution of simple, remedial measures could have been taken so that the risk was removed and injuries avoided. I adopt in these sentencing reasons a statement I made to that effect in Inspector Braddick v Connex Sydney Pty Ltd (known as Veolia Transport Sydney Pty Ltd) [2007] NSWIRComm 208 at [10]: