Industrial Court of New South Wales CITATION: Inspector Robert Mayell v D J Gleeson Pty Ltd [2006] NSWIRComm 217 Prosecutor: PARTIES: Inspector Robert Mayell Defendant: D J Gleeson Pty Ltd FILE NUMBER(S): IRC809 of 2005 CORAM: Kavanagh J CATCHWORDS: Prosecution - OHS - s8(2) – s6 Fines Act - plea of guilty – system of work at height – no scaffold delivered – failure to amend system – no secondary restraint – contractor at work – partial safety procedures in place – no instruction – builder for 50 years - long and good industrial record - financial status of defendant - penalty LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 2000 Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610 Inspector Seneviratne v Caltex Petroleum Distributors Pty Ltd [2005] NSWIRComm 192 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 CASES CITED: Markarian v R (2005) 215 ALR 213 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of New South Wales (Insp Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) 99 IR 163 HEARING DATES: 19/06/06 DATE OF JUDGMENT: 07/07/2006 Prosecutor: Mr R. Reitano of counsel Solicitors: Ms L. Barnes WorkCover Authority LEGAL REPRESENTATIVES: Defendant: Mr S. Grant of counsel Solicitors: Ms H. Hall Maccallum Lawyers JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Friday 7 July 2006 Matter No IRC 809 of 2005 Inspector Robert Mayell v D J Gleeson Pty Ltd Prosecution under s8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 217 1 This prosecution is brought by Inspector Robert Mayell of the WorkCover Authority of NSW against D J Gleeson Pty Ltd (the defendant) under s8(2) of the Occupational Health and Safety Act 2000 (the Act). 2 It is alleged the defendant breached s8(2) of the Act in that it failed to: Ensure that people not in the defendant's employment, and in particular, Geoffrey Raymond Bates, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work, contrary to section 8(2) of the Act. 3 The particulars of the charge are: (a) The defendant was at all material times an employer and had a place of work at 85 Shadforth Street, Mosman, in the State of New South Wales ("site"). (b) On or about 18 February 2003, the defendant was contracted by Allan and Mary Anderson to construct an extension to and refurbishment of an existing two-storey cottage at the site. (c) On 18 February 2003, Geoffrey Raymond Bates (Geoffrey Bates) was a person, not employed by the defendant, working at the site. (d) On 18 February 2003, Geoffrey Bates, a carpenter, attended the site having been sub-contracted by the defendant in order to undertake work at the site. (e) On 18 February 2003, the defendant failed to ensure that people not in its employment, and in particular Geoffrey Bates, were not exposed to risks to their health and safety arising out of the conduct of its undertaking whilst they were at its place of work in that: i) The defendant failed to conduct a risk assessment in relation to the work being undertaken by Geoffrey Bates at the site. ii) The defendant failed to provide a safe system of work with respect to roofing work in that the defendant failed to ensure that persons contracted by the defendant were provided with and/or were using an adequate fall prevention system whilst working at heights. iii) The defendant failed to provide such information, instruction, training and supervision as was necessary to ensure that persons contracted by the defendant in relation to work conducted at heights could safely undertake that work. iv) The defendant failed to provide any stable and securely fenced work platform such as scaffolding, walk boards or other form of portable work platform for people undertaking roofing work at the site. (f) On 18 February 2003, Geoffrey Bates was injured, whilst present on the site. On 5 March 2003, Mr Bates died as a result of his injuries. 4 The defendant pleaded guilty to the charge. 5 Mr R. Reitano of counsel appeared for the prosecution in the hearing as to penalty. An Agreed Statement of Facts was relied upon. The prosecution also tendered 20 photographs of the site, Factual Inspection Report and a Prior Conviction Statement. 6 Mr S. Grant of counsel appeared for the defendant. Mr Grant relied upon a tender bundle of documents, an affidavit of Mr Dennis Gleeson sworn 16 June 2006, with annexures and an Autopsy Report. 7 The agreed statement of facts relevantly reads: 1. Inspector Mayell is an inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("Act") and empowered under Section 106(1)(c) of the said Act to institute proceedings in the within matter. 2. The defendant was at all material times an employer and had a place of work at 85 Shadforth Street, Mosman, in the State of New South Wales (site). 3. The defendants undertaking was that of a builder of residential properties. 4. The contract involved the refurbishment of an existing single storey cottage, a new two storey extension to that cottage, veranda roof, courtyard paving and garage. 5. The contract document include: · The Lump Sum Contract for Simple Building Works dated 25 September 2002; · Specification marked 85 Shadforth Street – 28 April 2002; · Drawings numbered 0108-WD01/WD07 inclusive , survey 12960 1/1, survey 9790 1/1; · And architectural specification 28 April 2002. 6. The work to be executed in accordance with the contract was the construction of a new rear extension, verandah roof, courtyard, paving and garage at the premises. 7. The date of possession was 30 September 2002 and the date for practical completion was 20 weeks from 30 September 2002. 8. The contract was still on foot on 18 February 2003. 9. The defendant sub-contracted some of the work to Sommerville Plumbing and to Geoffrey Raymond Bates (Mr Bates). Mr Bates was a sub-contract carpenter and had been a carpenter on the site on and off since approximately late October 2002. 10. Mr Bates provided the defendant with an invoice for his work and the defendant then paid Mr Bates, by cheque, for the work carried out. 11. On 18 February 2003, Mr Bates was a person not employed by the defendant and performing work at the site. 12. On or about 17 February 2003, the defendant instructed Mr Bates to prepare the driveway side of the site for scaffolding. The defendant instructed Mr Bates to take down the fascia using a rod hook from the ground. 13. On 18 February 2003, the date of the incident, Mr Bates was pulling down the fascia, eaves and guttering using a rod hook. 14. Upon completion of this task, Mr Bates set up a ladder or ladders and began pushing tiles back from the roof edge. At approximately 2.00pm John Hawkes (Mr Hawkes), a plumber employed by Sommerville Plumbing and working at the site, discovered Mr Bates laying on the ground when he came to ask him for a battery for a cordless drill. Mr Bates was semi-conscious and incoherent, having apparently fallen from the ladder. An ambulance was called and after some delay in its dispatch, Mr Bates was transported to Royal North Shore Hospital. He subsequently passed away on 5 March 2003. 15. There were no eyewitnesses to the incident. Mr Hawkes and Matthew Evans (Mr Evans), another plumber employed by Sommerville Plumbing, were working inside the house and heard a loud noise, before Mr Hawkes investigated. 16. Dennis James Gleeson (Mr Gleeson) was cutting a tile in the front yard and did not hear anything. 17. Mr Hawkes, Mr Evans and Mr Gleeson recalled that the ladder that Mr Bates was working off at the time of the incident was tied off at the rafter. 18. Mr Hawkes saw Mr Bates on the ladder prior to the incident. He estimated the height above the ground that Mr Bates was working as being about 2 metres. Mr Hawkes stated that the ladder Mr Bates was working off was still in position, when he found Mr Bates. 19. On 6 March 2003 Inspector Mayell attended the site in response to an incident notification received the previous afternoon advising of the incident involving Mr Bates on 18 February 2003. Inspector Mayell was met on site by a person who identified himself as Mr Gleeson, a director of the defendant and John Norris (Mr Norris), a labourer on the site. 20. Inspector Mayell observed that the site consisted of an existing single storey brick cottage with a pitched tile roof. A two-storey extension was under construction adjoining the rear of the cottage. 21. Mr Gleeson identified the area where the incident occurred and Inspector Mayell observed the following: a) On the western side of the site, adjacent to 83 Shadforth Street, was a driveway that extended the length of the cottage and extended to a rear garage. The driveway had two concrete runners and was approximately 2150mm wide from the cottage wall to the boundary fence. This was the area identified by the defendant. b) The area identified by the defendant was approximately four metres north from the south-western corner of the existing cottage wall, in close proximity to the southern chimney. c) The height of the cottage western elevation from the lip of the guttering to the ground level was approximately four metres, measured at the area identified by the defendant. d) There was an incomplete, single bay modular scaffold adjacent to the area identified by the defendant. e) A six-metre extendable aluminium ladder, marked 'EZI-LIFT' on the locking mechanism, was lying against the western boundary fence. f) A stained glass window was lying against the western cottage wall. g) A white and green plastic package, marked '3M Health – Disposable Bandage' was on the ground against the western boundary fence. 22. Inspector Mayell examined the extension ladder that Mr Gleeson indicated was used by Mr Bates at the time of the incident. Mr Gleeson stated that his company, D J Gleeson Pty Ltd, owned the ladder. 23. Examination of the ladder revealed that the safety clips attached to the locking mechanism were not operational, as the spring tension had failed. When setting up the ladder Inspector Mayell observed that this did not have an impact on the efficacy of the locking mechanism, which fitted securely over the rungs. 24. Mr Gleeson told Inspector Mayell that Mr Bates was working from the ladder, as the scaffolding that was to be erected on the site had not arrived, and it was a week and a half overdue. 25. Annexed hereto and marked "A" is Inspector Mayell's Factual Inspection Report dated 6 March 2003. 26. Annexed hereto and marked "B" are the photographs numbered 1 to 7 taken by Inspector Mayell on 6 March 2003. 27. The defendant did not ensure that scaffolding was in place prior to Mr Bates commencing work at a height. 28. The defendant did not provide site induction to Mr Bates, Mr Hawkes or Mr Evans. 29. The defendant did not provide any instruction, supervision or training to Mr Bates prior to him undertaking work at the site. 30. There was no written Safe Work Method Statement in relation to the job. 31. The defendant did not undertake a risk assessment prior to Mr Bates commencing work at the site. 32. Following the incident the defendant erected scaffolding to install the fascia. 33. Mr Bates was fatally injured. Relevant Principles 8 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213. The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 9 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 10 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying: [57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 11 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. The task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(2) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). Of particular relevance is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, … (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . . Consideration 12 In a consideration of penalty, the court must consider the objective seriousness of the offence or, as has been said, the nature and quality of the offence. The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" . . . 13 Mr Gleeson is a 69 year old man who after a five year apprenticeship in carpentry and joinery which he began at 15 years of age, established, at the age of 20, his own business as a sole trader, licensed builder and carpenter. He incorporated this business into D J Gleeson Pty Ltd in 1973 and remains as the sole director of the company. 14 He worked with Geoffrey Raymond Bates as his sub-contractor carpenter on multiple building sites from late October 2002. 15 In February 2003, they were working on a home renovation and addition. On 18 February 2003, Mr Bates as a sub-contractor on site was pulling down the facia eves and guttering of the home to assist in the demolition. He was standing on a ladder about two metres from the ground. The ladder on which he was working had been tied off at a rafter. Scaffolding had been ordered for the building site but it was a week and a half late in arriving. 16 While performing his duties, Mr Bates fell from the ladder. No one saw the fall. The autopsy report tendered said: The possible role (of) a cardiac event initiating the fall was difficult to completely exclude. The report further identified Mr Bates died from head injuries some days after the fall. This evidence does not go far enough to satisfy, even as a possibility, certainly not a probability, that Mr Bates had a heart attack leading to his fall. I therefore reject the proposition that the risk was aggravated by the fact of a heart attack. I am not satisfied Mr Bates had a heart attack but more importantly the identified detriment to safety was a risk of falling (for whatever reason) without any secondary restraint available for a man working two metres (approximately) above the ground. 17 The risk of injury to which the defendant enters a plea of guilty arose from the implementation of an unsafe system of work in not providing any restraint or any form of adequate fall prevention for an employee working at height. There are four particulars relied upon in relation to this risk to which the defendant pleads, namely, it failed to risk assess the job, failed to provide adequate fall prevention, failed to properly inform, instruct, train and supervise the deceased. The defendant pleaded it also failed to provide suitable scaffolding or other form of platform suitable to the task. 18 In the circumstances, I am satisfied there is an element of foreseeability to the offence and accept the submission of the prosecutor that it would not have been difficult for the defendant to have ensured that the identified risk was assessed and known. It would then have been able to put in place the appropriate secondary support system for the task and to provide the appropriate training and instruction as to a safe work method. 19 The defendant knew of its obligations and had ordered scaffolding. Given the scaffold had not been delivered the defendant had to provide an alternative safe system. There was an attempt to so do in ensuring the ladder was attached. However there should also have been harnessing equipment or an alternative platform support provided. In submissions a proposition was suggested, namely, that there was no obligation on the defendant to supply such equipment if the height at which Mr Bates was working was under two metres. However, such a proposition does not address the obligation on the defendant to provide safe working. I am satisfied there was available a safe alternative system to perform this work. It follows such a system should have been implemented and then the appropriate training and instruction of the contractors carried out. On a worksite things cannot always go to plan. Here the required scaffolding was not delivered. Site safety required recognition of the failure to deliver scaffolding would affect the safe work method in place. A safety problem should have been recognised and an adjustment to the system had to be made to ensure safe working. This did not occur on this worksite. 20 In the above circumstance, I find there was an element of foreseeability to the offence. 21 While the fact of the death of Mr Bates is not the focus of this inquiry as Hill J pointed out in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5): The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability. and as Wright J, President said in WorkCover Authority of New South Wales (Insp Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) 99 IR 163 at [22]: . . . The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety. I am satisfied Mr Bates' death is a reflection of the gravity of the breach. This was a most serious offence. 22 The maximum penalty under the Act for a breach of s8(2) was, at the relevant time, $550,000. 23 The defendant has a long history in the construction industry. For nearly 50 years he has provided employment within the State. Mr Gleeson has worked in the building industry for all those years with no prior convictions. Mr Gleeson formed a corporation in 1973 and it has significantly contributed to employment within NSW. I note the corporation has been involved in community affairs and for the last five years sponsored State Rail Rugby League. This sponsorship is not tax deductible and should be read as an acknowledgement that I accept the defendant company has contributed to our society as a good corporate citizen. 24 Mr Gleeson before the court expressed his most sincere contrition and described the effect of the loss of Mr Bates, a personal and dear friend. On behalf of the corporation he offered a clear and unequivocal apology. Mr Gleeson has attended upon Mrs Bates. Mr Gleeson himself suffered severe stress arising from the incident and for that stress had to be hospitalised. 25 Mr Gleeson has, since the incident, completed a course in Occupational Health and Safety to ensure he is retrained as to modern safety requirements and standards. On behalf of the corporation he acknowledges his obligation to provide the appropriate training and supervision and has ensured that this obligation is reiterated through any activity by his company. However, given his age and this experience Mr Gleeson revealed to the court he now works through the company as a carpenter on a contract basis. 26 Notwithstanding those considerations, I am persuaded elements of both specific and general deterrence are required in an assessment as to the appropriate penalty. This principle was cited by the Full Bench of the Commission in Court Session, with approval, in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610 (at 644); (2000) 99 IR 29 (at 60) where it was said: . . . the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, WorkCover Authority (Inspector Page) v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . 27 The company continues to be registered to operate in the construction industry. Mr Gleeson continues to work as a carpenter but now he is a sub-contractor using the company identity in the building industry. This is but another example of the need to reiterate to the construction industry that there must be rigorous compliance with the industry's regulations and there must be an increased level of vigilance to ensure each task is risk assessed particularly as to the basic use of equipment needed such as scaffolding and harnessing to ensure safe working at height. 28 Reliance is placed upon the provisions of s6 of the Fines Act 1996 which provides: Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 29 It is the defendant who carries the onus if the court is requested to allow mitigation in the penalty due to a defendant's financial circumstances (Manpac Industries v WorkCover 106 IR 435). The company's tax returns have been placed before the court which reveal over three years a turnover somewhere between $500,000 to $200,000 to $300,000. Most years the corporation ran a taxable loss. This year the defendant suggests his income is above $260,000. Most years the company runs at a financial loss. The defendant has recently suffered some financial losses due to the aberrant behaviour of a client. He has had to downgrade his lifestyle including his home. I give consideration to his financial means which I accept are now under strain. However the defendant is not a person of no means. 30 I accept subjectively the defendant is a good corporate citizen, with no past breach of the Act. It is a fine industrial history given the number of years Mr Gleeson has worked in the industry. As I commented in Inspector Seneviratne v Caltex Petroleum Distributors Pty Ltd [2005] NSWIRComm 192: [35] I accept the defendant has not manifested, by its commission of this offence, a continuing attitude of disobedience to the law or a likelihood that any offence of like kind will be committed in the future. The defendant is a first offender who has now in place proper safety practice and procedures which procedures ensure there should be no risk of re-occurrence. 31 I accept further, as supported by the prosecution, an early plea of guilty was entered into which would attract the discount in accordance with the principles enunciated in Thomson. The utilitarian value of the early plea should attract the full discount available of 25 percent. 32 The prosecution accepted the defendant fully co-operated with WorkCover's investigation of the incident. 33 However, in sentencing, the penalty must reflect the objective seriousness of the offence. In the matter of Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474), the court commented: It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence. This view is ad idem with that expressed in Markarian. 34 I take into account the above subjective features. This was a serious offence which led to a tragic consequence. I find the defendant guilty. The defendant shall pay a fine of $30,000,00. 35 I make the following orders: 1. I find the defendant guilty. 2. The defendant is fined in the sum of $30,000.00 with a moiety to the WorkCover Authority. 3. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or, if there is no agreement, leave is granted to either party to approach the court for final orders as to costs. 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