Industrial Court of New South Wales CITATION: Inspector Webster v Kogan [2009] NSWIRComm 50 PROSECUTOR WorkCover Authority of New South Wales PARTIES: DEFENDANT Leonid Kogan FILE NUMBER(S): IRC 1078 of 2008 CORAM: Marks J CATCHWORDS: OHS prosecution - plea of guilty - defendant director of corporation which was guilty of breach of same act - ultimate responsibility for provision of safety structures reposed in the corporation - number of deficiencies - most serious offence - danger working on building site at a height of about six meters without adequate safety measures - deterrent effect - mitigating factors - guilty plea at earliest opportunity - expression of contrition and remorse - taken positive steps to enhance compliance - no prior conviction - penalty imposed. LEGISLATION CITED: Occupational Health and Safety Act s10, s26 HEARING DATES: 17 November 2008, 9 March 2009 DATE OF JUDGMENT: 29 April 2009 PROSECUTOR Mr C Magee of counsel Solicitor Legal Group WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Ms A Wong DEFENDANT Mr M Shume of counsel Solicitor Middletons Mr D Sloan JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Wednesday 29 April 2009 Matter No IRC 1078 of 2008 Inspector David Webster v Leonid Kogan Prosecution under s 10(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 50 1 The defendant, Leonid Kogan, is charged by the prosecutor, Inspector David Webster of the WorkCover Authority of New South Wales, with a breach of s 10(1) of the Occupational Health and Safety Act 2000 ("the Act") in that being a director of LEAD Group Pty Ltd (deregistered), a corporation that was guilty of a breach of the same Act, he is by s 26(1) of that Act deemed to have contravened the same section. 2 The application for order, which took the form of a second amended application filed in Court on 9 March 2009, was to the effect that LEAD Group Pty Ltd ("LEAD") had on 10 July 2006 "control in the course of its trade, business or other undertaking of the premises located at 18 Wilfield Avenue Vaucluse in the state of New South Wales being premises used by people not in the corporation's employment as a place of work and not occupied as a private dwelling." It is alleged that the corporation, and therefore the defendant, "failed to ensure that the premises, used by people as a place of work, and in particular Liam Brewster, were safe and without risk to their health, contrary to s 10(1) of the Act." 3 The particulars of the charge as contained in the amended application for order are as follows: (a) At all material times the defendant was the director of the corporation. (b) The corporation failed to provide and maintain safe access and egress to all parts of the premises used by people other than employees of the corporation as a place of work, including to and from ground level to level 1, and from level 1 to the formwork deck at level 2 of building B. (c) The corporation failed to ensure the safety of persons other than employees of the corporation, who were performing work at the premises and in particular concrete pump linesman by permitting them to use level 2 of the building at the premises as a place of work without providing scaffold which was erected around Building B up to level 2 and without providing adequate handrails or other form of fall protection in front of the leading edge of the formwork deck where there was a risk of falling approximately 6 metres. 4 There was tendered into evidence an Agreed Statement of Facts which is in the following terms: 1. At all material times, Inspector David Webster of the WorkCover Authority of New South Wales, 300 Elizabeth Street, Sydney 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 and empowered under Section 106 of the said Act to institute proceedings in the within matter. 2. At all material times Leonid Kogan ("the defendant") of 15 Russell Avenue, Sans Souci, in the State of New South Wales was a director of L.E.A.D. Group Pty Limited (deregistered) [ACN 076 955 907] ("the corporation"), a corporation whose registered office was situated at Suite 2, Level 2, 9-13 Bronte Road, Bondi Junction, in the State of New South Wales. 3. On 22 April 2008, the corporation was deregistered. 4. At all material times the corporation undertook a business, trade or undertaking in the civil and residential construction industry. 5. At all material times the corporation was an employer. 6. At all material times the defendant was a director of the corporation. Background 7. At all material times the corporation was the head contractor in relation to a construction project at 18 Wilfield Avenue, Vaucluse in the State of New South Wales ("the premises"). The project involved the construction of a two storey brick building ('building A') at the front of the property and a second two storey brick building ('building B') at the Premises ('the Project'). 8. At all material times the corporation had control of the premises both in relation to access to the premises and work being performed on the premises, but at no time was directly involved in the actual performance of the work. 9. At all material times the premises were not occupied only as a private dwelling. 10. At all material times the corporation had subcontracted A.G.G. Concreting Pty Limited ('AGG') to provide various services on the premises including concrete placing and finishing in relation to the construction of buildings A and B at the premises. 11. At all material times AGG subcontracted Proline Pumping Pty Limited ('Proline') to supply labour, plant and equipment for the provision of concrete pumping and associated works at the premises, in particular in relation to building B. 12. At all material times Proline employed Liam Brewster ("Mr Brewster") as a Concrete pump linesman. The Incident 13. On 10 July 2006, AGG was undertaking concrete placing and finishing work on the second level of building B at the rear of the Premises. 14. On 10 July 2006, Proline had been retained by AGG to provide labour and equipment for the purposes of pumping concrete to the second level of building B. 15. At all material times building B had scaffolding erected partly around the outside of the building up to the formwork deck at level 2 of building B. The front section of building B had no scaffold erected and scaffold was absent on the driveway side towards the front of building B. There were no hand rails or other form of fall prevention in place at the leading edge of the form work deck at level 2 of building B in these areas. 16. On 10 July 2006, the defendant was on site as the corporation's representative. The defendant had been up onto the formwork deck of Level 2 of building B prior to the commencement of the concrete pour. The defendant remained on site during the concrete pour. The defendant observed employees of AGG and Proline performing tasks in relation to the concrete pour on the formwork deck of Level 2 of building B, prior to and at the time of the Incident. 17. At all material times the defendant was aware of the lack of scaffold and fall protection at the front section and driveway side towards the front of building B. The defendant had directed that those areas of Building B not have scaffolding erected to enable form workers and other contractors to get materials to the formwork deck on level 2 of building B. 18. The defendant was also aware that no hand rails or other forms of fall protection were provided in front of the leading edge of the formwork deck of level 2 of building B, where the scaffolding was absent. 19. On 10 July 2006, Mr Brewster was undertaking concrete pumping work on the second level of building B. Mr Brewster's role included assisting with a concrete pumping hose, which was being used to deliver concrete from an agitator truck at the front of the premises to the second level of building B at the rear of the premises. The task required Mr Brewster to work at a height of approximately 6 metres above the ground below. 20. After placing the concrete, Mr Brewster was required to assist with the task of cleaning the remnants of concrete from the pumping hose. 21. This task involved Mr Brewster holding the end of the hose while a cleaning ball was being forced through the hose, under pressure, to clean the remnants of concrete out of the hose. 22. The director of Proline, Mr Joyce, was holding the hose approximately 2 metres back from Mr Brewster. Mr Joyce was manipulating the pressure in the hose by crimping it, which would build up back pressure in the line, and then releasing it to assist the cleaning ball to work. 23. Whilst performing this task Mr Brewster was standing within close proximity to the leading edge of the formwork on the second level of building B. Mr Brewster had his back to the leading edge. 24. At this location there was no scaffolding, handrails or any other form of fall protection provided to prevent persons from falling at the leading edge of the second level of building.B. 25. As a result of Mr Joyce crimping the hose, pressure built up in the line, the pumping hose moved suddenly causing Mr Brewster to lose his balance and he fell from the leading edge of building B approximately 6 metres to the ground. 26. At the time that Mr Brewster fell (and prior thereto), the defendant was performing work on the premises and observed Mr Brewster working on the formwork deck of level 2 of building B, in the vicinity where there was no scaffolding, handrail or other fall prevention systems in place. 27. Mr Brewster was still holding the hose as he fell from the leading edge and used the hose to slide down part of the way before letting go and falling approximately 4 to 4.5 metres onto broken bricks and other assorted construction materials which were lying on the ground below. 28. Mr Brewster sustained serious injuries including a fractured left thumb, fractured right foot and toes, and a fractured right kneecap, knee ligament and cartilage damage and a puncture wound to the right thigh requiring two stitches. He was transferred to St Vincent's Hospital by ambulance. He underwent a number of surgical procedures, in particular to repair his fractured kneecap. 29. As a result of the injuries, Mr Brewster was off work for more than 6 months. 30. The corporation failed to provide and maintain safe access and egress from the formwork deck at level two of building B at the premises, for persons performing work at the premises. 31. The access and egress provided to level 2 of building B at the premises was via an unsecured ladder and then by climbing over the formwork scaffolding up to the formwork deck or between the formwork and the wall up to the formwork deck. There was also an unsecured ladder on the other side of the building (left side of the building adjacent to the fence line) from which access and egress was provided from level 1 to level 2 of the building. 32. The corporation did not undertake any site induction of any of Proline's employees onto the Premises. Nor did the corporation require Proline to provide them with a Safe Work Method statement for the task of concrete pumping and/or the process to be used in cleaning the concrete pumping hose. 33. The corporation permitted Proline's employees to work in the area on level 2 of building B in circumstances where there was no scaffold, handrails or other fall prevention provided. 34. The corporation failed to ensure the safety of persons performing work at the premises in particular concrete pump linesmen, by permitting them to work at a height of approximately 6 metres on level 2 of building B at the premises without adequate scaffold, handrail or other form of fall protection being provided in front of the leading edge of the formwork deck where there was a risk of falling greater than 1.8 metres. 35. There were inadequate steps taken by the defendant or any one else on behalf of the corporation to ensure that adequate fall prevention was provided to all areas of level 2 of building B. 36. There was inadequate fall prevention around stairwell penetration on the ground floor and on the balconies at the rear of building B. 37. There were broken bricks, timber and other construction waste materials strewn throughout the premises and in particular in areas where persons using the premises as a place of work were required to access or leave the work area. Steps taken after the Incident 38. On the date of the incident a prohibition notice was issued to the corporation regarding falls from heights and the corporation was directed to cease work on building B. 39. The prohibition notice was complied with by the corporation. 40. Following the incident, on 11 July 2006, the corporation was issued with several improvement notices relating to the site, including working at heights, unsafe scaffolding systems, and principle contractor to ensure sub contracts provide safe work method statements. 41. The improvement notices were complied with by the corporation. Prior OHS Convictions 42. The defendant does not have prior convictions under the Occupational Health and Safety legislation. Cooperation with WorkCover 43. The defendant cooperated with the WorkCover investigation. 44. The defendant freely admitted during his interviews with WorkCover that he had been in error in not ensuring that there was adequate scaffolding and fall protection around building B. Documents 45. The following supporting documentation is annexed: A) 11 Colour photographs taken by Inspector Ron Spence and Inspector David Webster on 10 July 2006 (11 pages). B) Factual Inspection report of Inspector David Webster dated 11 July 2006 (2 pages). C) Six colour photographs taken by Inspector David Webster on 18 July 2006 (6 pages). D) Prohibition Notice No. 151472 issued on 10 July 2006 to L.E.A.D. Group Pty Limited (2 pages). E) Improvement Notices issued on 11 July 2006 to L.E.A.D. Group Pty Limited as follows: · No. 7-111659 relating to work at heights (2 pages); · No. 7-111651 relating to scaffolding (1 page); · No. 7-111662 relating to trip hazards (1 page). F) Workcover Prior convictions certificate 5 An affidavit of the defendant was admitted into evidence. He is aged 45 and was born and raised in Estonia where he gained tertiary qualifications in engineering. He worked in Estonia in the construction industry from 1985 until 1991, when he moved to Australia. In 1994, after some time working as a labourer for a construction company and learning English, he obtained a building licence and set up work as a sole trader, establishing the company LEAD in 1997. He was the sole director of that company. 6 There was some dispute in the proceedings as to whether LEAD had overall control of the building site or whether it was, essentially, acting as the co-ordinator of building works for the owners. I do not, in my opinion, need to consider this aspect because on whatever basis LEAD was involved with the site, it is clear that ultimate responsibility for the provision of safety structures such as scaffolding and guardrails reposed in LEAD. Furthermore, there were a number of other deficiencies as referred to in the Agreed Statement of Facts. 7 The commencement point for the assessment of penalty is the objective seriousness of the offence as committed by LEAD. Having regard to all the circumstances in which this incident occurred, it must be concluded that the offence was a most serious one. There is an obvious danger to anyone working on a building site at a height of about six metres if there is no adequate provision of scaffolding or guardrails to protect persons from falling. 8 In assessing penalty, I shall also have regard to the deterrent nature of any penalty, both generally within the building industry and also as it affects this defendant because he remains active within the industry. 9 There are mitigating factors that should be taken into account. The defendant pleaded guilty at the earliest opportunity, namely immediately after a second amended application for order was filed in Court during the course of the proceedings. Furthermore, the defendant has expressed contrition and remorse for what has occurred and has taken positive and constructive steps to enhance compliance with his obligations under the occupational health and safety legislation and his approach to compliance. 10 A number of references tendered on behalf of the defendant indicate that he is a person of good character. 11 Neither LEAD nor the defendant has any prior conviction under the Act or associated legislation. The maximum applicable penalty is therefore the sum of $55,000. 12 Having regard to the objective seriousness of the offence as committed by LEAD and the need for a general and specific deterrence, as previously referred to, but taking into account also the mitigating factors to which I have referred, I am of the opinion that an appropriate penalty in all the circumstances is the sum of $18,000. 13 The prosecutor sought orders for a moiety and costs which were not opposed. Orders 14 I make the following orders: 1) The defendant is found guilty of the offence with which he is charged and convicted accordingly. 2) The defendant is to pay a penalty of $18,000 with a moiety to the prosecutor. 3) The defendant is to pay the costs of the prosecutor in an amount assessed by the Court in default of agreement. 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.