Inspector Julie Townsend v Austruc Constructions Limited [2007] NSWIRComm 321

Industrial Court of New South Wales

CITATION: Inspector Julie Townsend v Austruc Constructions Limited [2007] NSWIRComm 321

PROSECUTOR: Inspector Julie Townsend PARTIES: DEFENDANT: Austruc Constructions Limited

FILE NUMBER(S): IRC 3244 of 2006

CORAM: Backman J

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

Maddaford v CSR and Mulgoa Quarries Pty Limited [2004] NSWIRComm 337 Morrison v Powercoal Pty Limited (2003) 130 IR 364 CASES CITED: R v Thompson; R v Houlton (2000) 49 NSWLR 383 Winchester (1992) 58 ACrimR 345 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383

HEARING DATES: 7 August 2007

DATE OF JUDGMENT: 28 December 2007

PROSECUTOR: Ms L M McManus of counsel WorkCover Authority (Mr G Spain) LEGAL REPRESENTATIVES: DEFENDANT: Mr A C Casselden of counsel Sparke Helmore Lawyers (Ms R Parmegiani)

JUDGMENT:

- 9 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: BACKMAN J

Friday, 28 December 2007

Matter No IRC 3244 of 2006

INSPECTOR JULIE TOWNSEND v AUSTRUC CONSTRUCTIONS LIMITED

Prosecution under s 8(1) of the Occupational Health & Safety Act 2000

JUDGMENT

[2007] NSWIRComm 321

1 The defendant, Austruc Constructions Limited, has pleaded guilty to an offence under s8(1) of the Occupational Health & Safety Act 2000 (the Act). The offence arises out of an incident on 11 October 2004 when Jeronimo Do Carmo Goncalves, a labourer employed by the defendant, fell 2.5 metres into a void at the Granville Swimming Centre which was being redeveloped at the time. 2 Mr Goncalves sustained a spinal injury as a result of the fall and was admitted to hospital where he was diagnosed with a 50 per cent wedge compression fracture of the vertebrae. He returned to work some ten months after the accident. 3 At the time of the incident, Mr Goncalves was working with a leading hand, Geoffrey Seaton, cleaning up formwork debris in order to make the area safe for a tiler who was to commence tiling a pool. It was Mr Goncalves' first day at the centre. He was given a site induction by Mr Seaton. During the induction Mr Seaton indicated generally the location of balance tanks and the voids to those balance tanks which had been covered with loose, unsecured formwork plywood. According to Mr Goncalves, Mr Seaton did not inform him about the existence and location of the voids to the balance tanks under the loose plywood. He said he did not know they were there. 4 In about March 2004 the defendant was awarded a contract to redevelop the existing swimming centre at Granville. The work was to include the refurbishment of an existing change building, the construction of a new office block, and the construction of three new swimming pools, general site work and landscaping. By 11 October 2004, the day of the incident, a 50 metre swimming pool, a 25 metre swimming pool and a leisure pool had been constructed at the centre. Four balance tanks, which were empty concrete boxes, were located at the end of the 25 metre pool. Their purpose was to allow filtration and to maintain the water tanks to the swimming pools. A wire mesh safety barrier which was 900 mm high was located around the perimeter of the 25 metre pool and the balance tanks. 5 In early September 2004 formwork plywood had been placed loosely and unsecured over the voids of the balance tanks. This measure was intended to reduce the risk perceived to arise from the installation of purpose built cast iron lids which had been initially constructed to cover the voids. During redevelopment of the centre, however, regular access was needed to the balance tanks for cleaning and maintenance. The lids were heavy and thought to constitute a manual handling risk. According to the site manager, William Spicer, the unsecured formwork plywood was intended to prevent damage to the finished surface of the pool deck surrounding the area where the balance tanks were located. 6 At the time of Mr Goncalves' accident, additional formwork (stripped plywood) which had been stripped by a subcontractor, Alite Formwork Constructions, had been placed on top of the loose formwork plywood covering the voids of the balance tanks. There was no means of differentiating between the stripped plywood and the formwork plywood. Nor had the stripped plywood been properly or tidily stacked. The defendant's site manager and the project manager were responsible for site safety inspections. Daily site safety inspection sheets included a checklist item headed, "Penetrations Covered." The completed site sheet covering the period during which the incident occurred discloses that no entries were recorded against that item. 7 About two days before the incident, Mr Seaton raised safety concerns with Mr Spicer and Gareth Goronwy, the sub-foreman, about the unsecured plywood over the voids. No action was taken to secure the plywood but a fence was erected as a safety barrier around the 25 metre pool and balance tanks. This measure did nothing to ensure the safety of Messrs Seaton and Goncalves who had to work inside the safety fence in order to clean up the debris. 8 According to the agreed statement of facts tendered during these proceedings, other site personnel were aware of the location of the voids. They had been on site when the voids were created following a concrete pour. In contrast, Mr Goncalves had not been to the centre prior to 11 October 2004. 9 During the site specific induction given to Mr Goncalves, Mr Seaton says that he informed Mr Goncalves of the existence of the balance tanks and that they were covered by plywood. He says he also advised Mr Goncalves of the approximate depths of the balance tanks (2.5 metres). In what purports to be an extract from an interview of Mr Seaton, set out in the agreed statement of facts, Mr Seaton says in relation to the site induction: