Industrial Court of New South Wales CITATION: Inspector Lancaster v Eurobodalla Shire Council [2009] NSWIRComm 192 PARTIES: Inspector Ian Lancaster of WorkCover Authority of New South Wales (Prosecutor) Eurobodalla Shire Council (Defendant) FILE NUMBER(S): IRC 2283; IRC 2284 of 2008 CORAM: Marks J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - breach of ss 8(1) & 8(2) of the Occupational Health and Safety Act 2000 - guilty plea and appropriate penalty - fatal injury - objective seriousness - serious breach - general and specific deterrence - general commitment to occupational health and safety - subjective factors - prior conviction - principle of totality - orders made LEGISLATION CITED: Occupational Health and Safety Act 2000 - s 8(1), s 8(2) HEARING DATES: 2 November 2009 DATE OF JUDGMENT: 19 November 2009 Mr D O'Neil of counsel (Prosecutor) Solicitor: Legal Group LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales Ms P McDonald of counsel (Defendant) Solicitors: Sparke Helmore JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Thursday 19 November 2009 Matter No IRC 2283 and 2284 of 2008 Inspector Ian Lancaster v Eurobodalla Shire Council Prosecution under ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 192 1 The felling of large trees using a chainsaw is an inherently dangerous activity. Tragically, Terry Connell, an employee of the defendant, Eurobodalla Shire Council, was killed on 12 December 2006 whilst attempting to fell a large tree using a chainsaw. The defendant has been charged by the prosecutor, Inspector Ian Lancaster of the WorkCover Authority of New South Wales, with two breaches of the Occupational Health and Safety Act 2000 ("the Act"), namely of ss 8(1) and 8(2) arising out of this incident. The defendant has pleaded guilty to both charges and this judgment concerns only the imposition of an appropriate penalty. 2 There was tendered into evidence an agreed statement of facts in the following terms: 1. At all material times the prosecutor, Inspector Lancaster was 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. Eurobodalla Shire Council (ABN 47 504 455 945) ("the defendant") was at all material times, a body politic pursuant to the provisions of section 220 of the Local Government Act, 1993, with its principal office situated at Vulcan Street Moruya in the State of New South Wales The parties 3. At all material times the defendant was a body politic of the state and was entitled to be prosecuted in that name and style. 4. At all material times the defendant was an employer. 5. At all material times the defendant employed Stephen Arthur, Scott Paul, Ian McGrath, Russell Burke, Warren Sharpe, James Levy and Terry Connell. 6. At all material times the defendant was engaged in road widening works on Dunns Creek Road, Mogo ("the site"). 7. At all material times the defendant contracted R.D Miller Pty Ltd to operate a 35 tonne excavator during the road widening works. R D Miller Pty Ltd engaged Barry Lewis to perform this work at the site on its behalf. 8. At all material times the defendant, contracted Uther King Pty Ltd to operate a bulldozer to conduct clearing for roadworks. Uther King Pty Ltd provided George Clulee to operate the bulldozer at the site on its behalf. 9. The defendant was the principal contractor on site and supervised all aspects of the work carried out. 10. At all material times the following supervision structure was in place: Warren Sharpe, Group Manager, Russell Burke, Senior Project Engineer, Ian McGrath, Construction Coordinator and Scott Paul, Acting Works Supervisor. 11. Scott Paul performed the role of on site Acting Works Supervisor for day-to-day activities. This involved supervision of its employees and sub-contractors including Terry Connell, Les Read, Steve Arthur, George Clulee, Barry Lewis, Jim Sheather. 12. Ian McGrath was available at the depot each morning and visited the site approximately twice a week and anytime they needed advice. Planning Dunns Creek Road Project (the Project) 13. Prior to works commencing on site the defendant had in place a project management plan for road construction projects, which was adopted for this Project. The management plan included risk assessments, safe work method statements and a framework for occupational health and safety training. 14. Part 5 of the Project Management Plan deals with safety and is entitled "Project Safety Management Plan (PSMP)" Clause 5.2.3.1, paragraph 1 of the project management plan provided that the "Council undertakes the types of projects covered by this PSMP on a regular basis. The tasks undertaken are often similar in nature although each site presents slightly different scenarios. (These site specific characteristics must be assessed prior to proceeding with the work to determine if the existing documentation included in this PSMP is sufficient to complete the work safely)." And further provided at Clause 5.2.3.1, paragraph 7 "The required permits, licences and certificates to undertake specific activities are also listed on each of the work method statements." 15. As required by the project management plan, the defendant conducted risk assessments in consultation with workers, developed work method statements and assessed training needs for the work planned to be undertaken on the Project. 16. The site included problem trees however the risk assessment process, did not involve the identification of the presence of problem trees. 17. As such the safe work method statement for tree felling known as WMS No. CM006 created on 11 September 2006 which was used for the Project did not address the risk of felling problem trees and hence did not identify the required level of accreditation. Felling Problem Trees 18. A problem tree is defined by the Chainsaw Operator's Manual as including a double leader tree and trees whose natural lean is away from the desired direction of the fall (pages 68-73). Trees that are considered problem trees should only be felled by an accredited Level Three Chainsaw Operator (page 74). 19. Chainsaw Operator Level One (Cross cutting) is the relevant accreditation for cross cutting trees which have already been felled. Chainsaw Operator Level Two (Tree Felling) is the relevant accreditation for basic tree felling. Chainsaw Operator Level Three (Advanced tree felling) is the necessary level of accreditation for felling problem trees or machine assisted tree felling (this does not include the work method of pushing the trees over with a bull dozer only). 20. No one working on the Project held a Chainsaw Operator Level Three accreditation. Work at Dunns Creek Road Project 21. On 21 November 2006 work commenced on site for the Dunns Creek Road Project. The Project involved realignment and widening the road by the removal of trees on either side and associated earth works. 22. The works involved tree clearing, tree felling, road works, earth works, timber mulching and general site works. In particular, the realignment and widening of Dunn's Creek Road required the removal of approximately 300 mature gum trees, which were on average 30 metres tall and 1.8 metres in circumference. 23. Tree felling on site was to be conducted through the use of a caterpillar D-7 Bulldozer which was fitted with a ripper and tree pusher attachments. The bulldozer was used to push the trees to the ground where they were then cross-cut, to allow the usable logs to be separated for re-use. This process also allowed the timber to be sectioned into manageable sizes for an excavator to move the timber remains into a mechanical commercial milling machine. Incident 24. Scott Paul took leave from 6 December 2006 to 8 December 2006 and no trees were felled on 11 December 2006; whilst he was on leave Terry Connell acted as supervisor on site. 25. On 8 December 2006 Ian McGrath attended the site following a request from Terry Connell, to investigate a number of trees inside the boundary of a property situated at 215 Dunns Creek Road. 26. Ian McGrath, construction coordinator, undertook a visual assessment of the trees and instructed Terry Connell not to touch those trees which were located from the boundary fence line in, due to the location of Telstra lines. This instruction was not documented and before 12 December 2006 was not conveyed to any other person. As a result, Scott Paul was not made aware of Ian McGrath's assessment of the site nor his instruction to Terry Connell. 27. On the morning of 12 December 2006 Scott Paul returned to the site in his capacity as supervisor. Prior to the commencement of works Terry Connell spoke with Scott Paul and informed Scott Paul that he was instructed to fell the trees situated at 215 Dunns Creek Road. A work activity briefing was conducted with the crew members assigned to perform the task, George Clulee said he could not steer the tree with the bulldozer without damaging anything, and a decision was made to use the excavator. 28. Scott Paul instructed the traffic controllers Leslie Read & Stephen Arthur to set up traffic control and to inform Barry Lewis to bring the excavator to No 215 Dunns Creek Road. 29. After Barry Lewis arrived with the excavator another work activity briefing occurred between Terry Connell, Scott Paul and Barry Lewis regarding the method to fell the trees so as not to damage the boundary fence or disturb the underground Telstra phone lines. It was agreed that Terry Connell would cut the tree manually and Barry Lewis would use the excavator to push the tree toward the road, away from the fence. The bulldozer was not utilised as the boundary fence obstructed its access to the site. 30. Scott Paul was then called away to a job approximately 600 metres further up the road to remove a tree that had fallen on the road overnight. He did not return to the site until after the incident. 31. The tree that was felled at No 215 Dunns Creek Road was a double leader tree. Double leader trees are characterised by a fork in the trunk which splits into two from the lower common trunk and are classified as problem trees. The canopy and weight distribution of each trunk has a natural lean away from each other and away from the centre of the lower common trunk which makes felling this type of tree problematic. The tree measured 25 metres in height and was approximately 49cm in diameter at the base. 32. In the area immediately west of the tree were a number of obstructions, including light scrub growth, a small pine tree, a small galvanised steel pipe and a survey peg. The excavator was situated to the east of the double leader tree on the road side of the boundary fence. The arm of the excavator extended over the boundary fence and rested on the north eastern side of the tree. The intended line of fall of the tree was in the direction of Dunns Creek Road. 33. Terry Connell commenced to fell the tree and placed the scarf cut into the side of the tree facing Dunns Creek Road. Terry Connell then jumped the fence, entered the property and commenced the back cut into the tree. The cut went through the holding wood and caused the tree to fall off the stump so that the excavator was unable to guide the tree in the intended direction of fall. 34. The tree fell back towards Terry Connell in the opposite direction from the intended line of fall. He attempted to run away from the tree along an escape route to the west of the tree. However, Terry Connell tripped over and the tree fell onto him causing fatal injuries. 35. At the same time, George Clulee was further up the road operating the bulldozer which had attached rippers and a tree pusher. George Clulee was clearing the area around other trees in preparation to push the trees over. 36. Immediately after the tree fell, Barry Lewis called 'emergency' over the two-way radio three times. 37. Barry Lewis ran to Terry Connell and tried to lift the tree off him. 38. Barry Lewis called out and George Clulee ran to the site and tried to start the chainsaw to attempt to cut Terry Connell free from the fallen tree. Unable to start the chainsaw, Barry Lewis used the excavator to lift the tree off Terry Connell. 39. Having heard Barry Lewis' call over the two-way radio, Leslie Read went to the site to administer first aid. He was assisted by Scott Paul and Jim Sheather. 40. Emergency services were called to the scene and conveyed Terry Connell to hospital where he was pronounced dead. Systems of Work prior to the incident 41. As at 12 December 2006 the defendant had not identified the presence of problem trees on site. 42. The defendant had systems in place for assessing training needs of workers. The training undertaken by employees was monitored and kept up to date by the defendant. However, this system did not recognise the need for higher levels of chainsaw competencies for the work being undertaken at the site. No additional training needs were identified for the work on Dunns Creek Road and the defendant wrongly considered that workers employed had the appropriate training and skills required for the Project. 43. Terry Connell held a Chainsaw Operator Level One (Cross cutting) accreditation gained in 2003 and again in 2006, whilst employed by the defendant. He also held a Certificate III in Local Government (Operational Works) which included a unit on chainsaw operations and horticulture. 44. No one working at the site held a Chainsaw Operator Level Three accreditation. In particular neither Scott Paul, Terry Connell, Barry Lewis or George Clulee held the requisite qualification to permit them to adequately assess the trees to be felled or perform tree felling work on problem trees. The defendant had not trained Scott Paul or Terry Connell as to the need for a competent person to assess the trees at site. 45. As at 12 December 2006 a safe system of work to fell problem trees with a chainsaw had not been developed and had not been assessed by a competent person. Use of the Excavator 46. Machine assisted manual tree felling is a high-risk activity that requires specific training and expertise by both the feller and machine operator. 47. The safe system of work developed by the defendant for falling trees on site was to push the trees over using a bulldozer. The trees would then be limbed while on the ground using the excavator and chainsaws. Mill logs were then stacked and branches were to be mulched. 48. As the defendant had not contemplated that trees would be felled using an excavator there was no risk assessment and no safe work method statement for that task. 49. Not only was the use of the excavator not contemplated there had in fact been an instruction issued by Warren Sharpe, Group Manager, roads and recreation services stating that excavators were not to be used for major tree felling. 50. The D-7 bulldozer owned by Uther King Pty Ltd and operated by George Clulee was fitted with both ROPS (Roll Over Protection System) and FOPS (Falling Overhead Protection). However the excavator owned by R.D. Miller Pty Ltd and operated by Barry Lewis was not fitted with either ROPS or FOPS. FOPS are generally used to protect the vehicle and operator from overhead material which may strike the cabin and is a roof strengthening device. Escape Routes 51. The safe work method statement WSM No. CM006 created 11 September 2006 for works involving tree felling identified the hazard of falling trees and required that two escape routes be prepared ensuring that the routes were cleared and discussed with all personnel. 52. The Chainsaw Operators Manual provides that each escape route be prepared at a 45 degree angle away from the desired direction of fall and that it be clear of all obstacles for a distance of four metres or more. The Chainsaw Operators manual also provides that prior to felling a tree the operator should prepare a clean work area around the tree, clear around the base of the tree and prepare an escape route. 53. No predetermined escape routes were identified and cleared of debris before Terry Connell commenced felling the tree. There was an escape route to the north east which was clear of debris. There was no escape route to the north west which is the direction in which Terry Connell ran. 54. In addition, the Chainsaw Operator's manual provides that the faller should ensure that no other persons are working within the drop zone of the tree to be felled. At the time of the incident, Barry Lewis was working within the drop zone of the tree and consequently was placed at risk. 55. The Australian Standard Chainsaws- Guide to Safe Working Practice [AS2727-1997] provided that the following should be considered when preparing a worksite and when assessing a tree for felling: General [4.5.3.1] The felling of trees should only be undertaken by experienced operators or under the direct supervision of a skilled operator. "Worksite preparation"[4.5.3.4] c) an escape route 45 degrees on either side and backwards from the direction of the fall should be cleared to enable the faller to avoid the reaction of the falling process Tree assessment [4.5.3.3] (h) the condition of the tree should be checked for stem form … cracks and splits, (i) the weight distribution of the tree should be checked. Branching or heavy growth on one side may pull the tree in that direction. Felling operation [4.5.3.5] (c)The holding wood acts as a hinge which controls the tree fall. The holding wood should be intact across the stump to maintain the direction of the fall." System of work after the incident 56. Immediately after the incident on 12 December 2006 all work on Dunns Creek Road was suspended. 57. The defendant undertook a review of all training requirements of staff and completed an audit of competency requirements for all tasks to be undertaken on the Project. 58. The defendant conducted a supervisors training course which covered the project management plan, re assessment of risk components of work undertaken, reinforcement of the risk management process. 59. The defendant undertook a review of all work method statements and risk assessments. Investigation of the Incident 60. On 12 December 2006, Inspector Constable attended the site and made observations contained in a Factual Inspection Report dated 16 January 2007. 61. On 13 December 2006, Inspector Franke attended the site and made observations contained in a Factual Inspection Report dated 14 December 2006. 62. On 12 December 2006 and 13 December 2006, whilst at the site Inspector Constable and Inspector Franke took a number of photographs. 63. The defendant cooperated with WorkCover throughout the investigation. The Defendant's Criminal History 64. On 14 March 2003, the defendant was convicted of an offence pursuant to section 15(1) the Occupational Health and Safety Act 1983 in the Chief Industrial Magistrate's Court of New South Wales. The defendant received a penalty of $20,000.00 for this offence. 3 In addition, the prosecutor tendered into evidence a bundle of documents consisting of inspection reports, photographs, chainsaw operators' manuals and similar documents, and a number of documents prepared by the defendant concerning the particular road construction project on which the late Mr Connell was working, the defendant's occupational health and safety policy and risk assessments and safe work methods statements prepared by it. 4 For the defendant, there was tendered into evidence affidavits of Paul James Anderson, the defendant's General Manager, and Cherie Simone Enders, the defendant's Director – Commercial And Corporate Services. Both of those affidavits had attached to them a great deal of documentation. 5 A Victim Impact Statement was prepared by Mr Connell's widow, Liz Connell. The Court was given a copy in written form and Mrs Connell read it during the course of the proceedings. 6 The Court acknowledges the tragic and devastating impact of the loss of Mr Connell as a husband of 33 years, the father of six children and the grandfather of their children. 7 Although the defendant is charged with a breach of two sub-sections of s 8 of the Act, as the defendant submitted, and the prosecutor readily acknowledged, both breaches arise out of the same incident and the same course of conduct which led up to it. 8 Relevantly, ss 8(1) and 8(2) of the Act are in the following terms: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 9 The starting point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the offences with which the defendant is charged. 10 In considering the seriousness of the offences, the Court is entitled to take into account the totality of the relevant circumstances that applied at the time that the incident occurred. It is uncontroversial that at the time of the incident, the defendant did have in place a project management plan and a project safety management plan which required an assessment to be made of the work to be undertaken and the risks associated with that work. This in turn led to the development of work methods statements and an assessment of what training needed to be undertaken for the work to be carried out safely. 11 Under the management plan, a project team was established by the defendant and a number of risk assessments were undertaken. The effect of the work method adopted by the defendant was that trees would be pushed over by a bulldozer and would then be cut up whilst on the ground using chainsaws and an excavator. These work methods statements did not contemplate that trees would be felled other than by being pushed over with the use of a bulldozer. Indeed, instructions were given to this effect and in particular employees and others engaged in the road project were precluded from using excavators or from cutting down trees using a chainsaw. There was evidence that on 8 December 2006, the roadwork site had been attended by a Mr Ian McGrath who saw and assessed trees in the vicinity that needed to be removed. He issued a direction to Mr Connell that they were not to be cut down, as referred to in [26] of the agreed statement of facts. Unfortunately, the direction was issued verbally and not in writing. If it had been issued in writing it is possible that it would have come to the attention of Mr Scott Paul, who had been absent on 8 December 2006 and that Mr Paul may not have permitted Mr Connell to attempt to cut down the tree. 12 The combined use of a chainsaw with the proposed assistance of an excavator in felling what has been characterised as a "problem tree" was clearly an unsafe method of felling the tree. The defendant by its plea of guilty admitted its failure to adequately inform those carrying out the work that they were not to use a chainsaw and excavator for this purpose and to adequately enforce that instruction. 13 The result is that the work was undertaken in circumstances that were inherently unsafe. 14 Given the nature of the work and the inherent dangers associated with work of that kind, the breach by the defendant of the provisions of the Act must be seen to be objectively very serious. 15 Notwithstanding this, the circumstances that surround this unfortunate and tragic incident are not to be seen as representing a worst-case offence. The defendant clearly had in place comprehensive and detailed processes and protocols associated with the carrying out of the work. The offences committed by the defendant arose out of a gap in what was otherwise a comprehensive and serious attempt to comply with its occupational health and safety obligations. Nevertheless, the existence of this gap is reflective of a serious breach of the defendant's responsibilities under the legislation. 16 In determining an appropriate penalty the Court is also required to take into account the deterrent effect that any penalty will create. There is both a general deterrent effect, which serves as a warning to others undertaking similar activities, and a specific deterrent, which the imposition of a penalty will create for this defendant. In this latter regard, I note that not only did the defendant exhibit a comprehensive and serious commitment to its occupational health and safety obligations prior to the incident but, on the evidence, has taken constructive and detailed steps to endeavour to remove any other gap in its occupational health and safety policies and procedures. The specific deterrent effect of any penalty on this defendant should be ameliorated accordingly. 17 There are a number of subjective factors that the Court is entitled to take into account in mitigating any penalty to be imposed. The defendant pleaded guilty to amended charges at the earliest appropriate time, it co-operated fully with the prosecutor and the WorkCover Authority of New South Wales in and about enquiries and investigations into the accident and it has exhibited in a tangible and positive way remorse and contrition for the incident, including financial and other support given to the family of the late Mr Connell. Indeed, there has been public recognition in the renaming of a bridge in the area as the Terry Connell Bridge. Furthermore, I am satisfied that the defendant has, as I have already indicated, a positive, constructive and responsible attitude to its occupational health and safety obligations and that otherwise the defendant may be regarded as a good corporate citizen. 18 It is also necessary that I mention the principle of totality. Both charges arise out of the one incident and the same course of conduct. It would be inappropriate, in these circumstances, to impose separate penalties by reference to each of the charges without ensuring that the totality of the penalties imposed in both cases reflect the overall criminality of the defendant arising out of the particular incident which gave rise to these proceedings. 19 The defendant has had a prior conviction for a breach of the Act. A penalty of $20,000 was imposed by the Chief Industrial Magistrate on 14 March 2003 arising out of a prosecution following an incident which occurred on 4 December 2000. The fact of this prior conviction mandates the quantum of the maximum penalty that applies for each offence as being $825,000. 20 I should mention that the fact that there is only one prior offence is representative, in my opinion, of an excellent safety record. In stating this, I take into account that the defendant Council covers a geographic area of approximately 3,422 square kilometres. The Council is responsible for the maintenance of about 524 kilometres of local sealed road, 58 kilometres of regional sealed road and 429 kilometres of unsealed gravel roads. It currently has 142 full-time equivalent staff within its Roads and Recreation Services Division, which is responsible for planning and completing infrastructure projects including roads, footpaths, bridges and parks. 21 Having regard to all of the matters to which I have referred, including the objective seriousness of each of the offences, the need to reflect the deterrent effect of penalties imposed, and having regard also to the subjective matters to which I have referred, I conclude that an appropriate penalty for each offence would be $150,000. However, taking into account the principle of totality, which clearly applies in the circumstances of these proceedings, it is my opinion that a total penalty of $175,000 is appropriate in all the circumstances. 22 The prosecutor sought orders for the payment of a moiety and costs, which were not opposed. Orders 23 1. The defendant is found guilty of each of the charges and convicted accordingly. 2. I impose a penalty for each of the charges of $87,500 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecution 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.