Industrial Court of New South Wales CITATION: Inspector Daniel Beavon v Martin Gerald Barratt and Anor [2007] NSWIRComm 48 Prosecutor: Inspector Daniel Beavon PARTIES: Respondents: Martin Gerald Barratt Full Brick Homes FILE NUMBER(S): IRC2568&2569 of 2006 CORAM: Kavanagh J CATCHWORDS: Section 8(2) and s26(1) - OHS Act - pleas of guilty - family business - building company/and individual defendant - the individual defendant a director and supervisor of works and managing mind of the company - failure to provide scaffold to height - failure to provide guards over perimeter first floor - guard and rails on stairs and around voids - risk of fall from height became a reality - financial status of defendants a consideration while addressing objective seriousness of offence for penalty - penalties LEGISLATION CITED: Occupational Health and Safety Act 1983 s8(2) s26(1) Alcatel v WorkCover Authority (1996) 70 IR 99 Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610 Fisher v Samara Industries Pty Ltd (1996) 82 IR 384 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) CASES CITED: Markarian v R (2005) 215 ALR 213 R v Thomson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104 Tyler v State Electricity (1993) 47 IR 1 R v Winchester (1992) 58 A Crim R 345 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) (1999) IR 163 HEARING DATES: 05/02/07 DATE OF JUDGMENT: 20 March 2007 Prosecutor: Ms L.M. McManus of counsel Solicitors: Ms N. Napoletano WorkCovery Authority LEGAL REPRESENTATIVES: Defendants: Mr S.B. Benson of counsel Solicitors: Mr D. Kennedy Kennedys Law Firm JUDGMENT: - 21 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J 20 March 2007 Matter No IRC 2568 of 2006 INSPECTOR DANIEL BEAVON v MARTIN GERALD BARRATT Prosecution under s26(1) of the Occupational Health and Safety Act 2000 and deemed from 8(2) of the Occupational Health and Safety Act 2000 Matter No IRC 2569 of 2006 INSPECTOR DANIEL BEAVON v FULL BRICK HOMES PTY LTD Prosecution under s8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 48 1 These prosecutions are brought by Inspector Daniel Beavon of the WorkCover Authority of New South Wales against Martin Gerald Barratt, (the individual defendant) pursuant to s26(1) and Full Brick Homes Pty Ltd (defendant company) pursuant to s8(2) of the Occupational Health and Safety Act 2000 (the Act), by way of an Application for Order. 2 It is alleged the individual defendant contravened s26(1) of the Act (as deemed to be a contravention of s8(2) of the Act) in that it: . . . failed to ensure that persons other than the employees of the employer, in particular Andrew Buchanan and Danny Barratt, were not exposed to risks to their health, safety and welfare arising from the conduct of the employer's undertaking while they were at the employer's place of work, contrary to section 8(2) of the Occupational Health and Safety Act 2000. The particulars of the charge against the individual defendant (IRC2568 of 2006) In particular: a) failed to ensure that there was edge protection or similar control protection devices in place to prevent persons other than the employees of the employer from falling from the void or perimeter edges on the first floor slab of the premises; b) failed to ensure that there was edge protection or similar control protection devices in place to prevent persons other than the employees of the employer from falling from the unprotected stairs on the first floor slab of the premises; c) failed to ensure that there was a safe system of work in place to ensure that all perimeter edges and voids on the premises, where persons other than the employees of the employer could fall from a height, were protected by edge protection or similar control measures. d) failed to ensure that there was a safe system of work in place to ensure that persons other than the employees of the employer were prevented from accessing unsafe areas of the premises, where there was a risk of falling from a height over perimeter edges or voids. e) failed to provide such adequate instructions, information and/or training to the persons other than the employees of the employer as was necessary in relation to risks arising from working at height. As a result of the said failures Mr Buchanan and Mr Danny Barratt were placed at risk of injury. Mr Buchanan suffered actual injury. 3 It is alleged the defendant company contravened s8(2) of the Act in that it failed to: ensure that persons other than the employees of the employer, in particular Andrew Buchanan and Danny Barratt, were not exposed to risks to their health, safety and welfare arising from the conduct of the employer's undertaking while they were at the employer's place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000. The particulars of the charge against the defendant company (IRC2569 of 2006) In particular, the defendant company: a) failed to ensure that there was edge protection or similar control protection devices in place to prevent persons other than the employees of the employer from falling from the void or perimeter edges on the first floor slab of the premises; b) failed to ensure that there was edge protection or similar control protection devices in place to prevent persons other than the employees of the employer from falling from the unprotected stairs on the first floor slab of the premises; c) failed to ensure that there was a safe system of work in place to ensure that all perimeter edges and voids on the premises, where persons other than the employees of the employer could fall from a height, were protected by edge protection or similar control measures. d) failed to ensure that there was a safe system of work in place to ensure that persons other than the employees of the employer were prevented from accessing unsafe areas of the premises, where there was a risk of falling from a height over perimeter edges or voids. e) failed to provide such adequate instructions, information and/or training to the persons other than the employees of the employer as was necessary in relation to risks arising from working at height. As a result of the said failures Mr Buchanan and Mr Danny Barratt were placed a t risk of injury. Mr Buchanan suffered actual injury. 4 The defendants plead guilty to the charges. 5 Both charges were heard together with evidence in one being evidence in the other where relevant. 6 Ms L.M. McManus, of counsel, appeared for the prosecution and Mr S.B. Benson, of counsel, appeared for the defendants. The prosecution relied upon an Agreed Statement of Facts, Seven Photographs, Inspector Factual Inspection Report dated 7 January 2005 and a Prior Conviction Certificate. 7 The defendant tendered the affidavit of Martin Gerald Barratt with attached documents, a Full Brick Homes Tax Return for 2005, Martin Barratt's Tax Return for 2005 (in 06/2568) and handwritten statement re assets and liabilities (in 06/2568). 8 The Agreed Statement of Facts in matter No. IRC2568 of 2006, the individual defendant matter, was tendered and relevantly reads: 3. At all material times Full Brick Homes carried on the business of contract construction work. 4. At all material times the defendant was employed by Full Brick Homes as a supervisor. 5. At all material times Full Brick Homes sub-contracted Andrew Buchanan to perform work at a site situated at 2 Wolli Creek Road, Banksia, in the State of New South Wales (" the premises "). 6. On 17 December 2004 Mr Buchanan was at the premises with sub-contractor's, Danny Barratt and Tony Hamilton, who were bricklayers. The men arrived at the premises around 6.55am. They had been given the task of finishing off the brickwork on the garage on the ground floor and to replace chipped bricks from the garden bed. There was no work planned to be conducted on the first floor slab to the building on that day. 7. Prior to the arrival at the building site of Mr Buchanan, Danny Barratt and Tony Hamilton; a delivery of bricks by the supplying brick company had occurred. The truck driver had unloaded the bricks on the top of the first floor slab instead of delivering the bricks to the ground level. 8. Shortly after arriving at the premises Mr Buchanan moved the brick buggy from the ground floor to the first floor of the building. 9. Mr Buchanan walked backwards and pulled the brick buggy up the stairs from the ground floor to the first floor. Danny Barratt was walking behind Mr Buchanan to check the bricks were secure. When Mr Buchanan stepped onto the first floor slab, the brick buggy was positioned on the top step. He pulled the buggy up over the top step and onto the first floor slab. In doing so he stepped backwards, falling through a void that was positioned directly opposite about 1.6 metres from the staircase. He fell backwards about 3 metres to the concrete slab below, landing on his head and shoulders. 10. Danny Barratt was still on the staircase. 11. Mr Buchanan was admitted to St. George Hospital suffering from left subdural haemorrhage and skull fractures requiring drainage and subsequent cranioplasty, non-displaced facture of T10 and burst fracture of LI requiring an open reduction and internal fixation on 23 December 2004. Subsequent events include anaemia requiring transfusion, sepsis requiring antibiotics and a tracheotomy. He was admitted as an inpatient at Prince of Wales Spinal Unit on 24 February 2005. He still has post-traumatic amnesia and is still being evaluated for a possible post-operative collection. He requires ongoing rehabilitation and referral to a brain injury rehabilitation specialist. 12. Mr Buchanan was not interviewed directly after the incident due to his medical condition, however he was interviewed on 11 November 2005. 13. On 17 December 2004 Inspector Denis Macready of the WorkCover Authority of NSW attended the premises. He observed the following:- a. a partly constructed cream brick residence on the corner of Wolli Creek Road and Arlington Street; b. both front boundaries of the property had temporary security fencing placed outside the existing red brick fence; c. brickwork had been completed up to the first floor concrete slab; d. scaffolding two metres high had been erected across the front and down each side of the house; e. eleven (11) pallets of red bricks were stacked two pallets high on the southern edge of the first floor slab; f. the front entrance had dimensions of approximately 3.34m (front entrance to the bottom stairs) by 2.24m wide. The floor was a concrete slab; g. the top of the first floor slab at the edge of the void was measured at approximately 3.03m above the ground floor slab in the front entrance area; h. at the southern end of the area was the main entrance approximately 1.3m wide with approximately 450mm of brickwork either side; i. a stack of three whole common bricks and five part common bricks were located approximately 1.5m from the eastern side of the entrance area and approximately 250mm in front of the front door opening. A single common brick lay in the front door opening; j. a small piece of masonite approximately 170mm x 60mm and a small block of wood approximately 80mm x 90mm x40mm lay just to the north of the stack of three bricks; k. a stack of common bricks approximate dimensions of stack, 900mm x 300mm x 970mm high were located adjacent to the western side of the front entrance; l. a piece of timber approximately 65mm x 65mm x 1m long lay with one end in the western side of the front opening, and the other end 300mm north of the western corner of the front entrance brickwork; m. a blue cap with open mesh back and sides lay top down at the western corner of the front entrance brickwork. Cap had words "CHEVROLET WORK SAFELY" embroidered in red letters on a white patch. The cap had reddish stains on the brim, and back right half of the bottom edge of the cap. The cap had a small white label with the words "INDUSTRIE" in black letters and "URBAN DWELLER" in red letters; n. a flight of concrete stairs leading up to a landing, midway to the first floor, was located at the eastern half of the northern end of the entrance area; o. the stairs were approximately 190mm and had treads approximately 260mm wide. The landing at the top of this first flight of stairs had approximate dimensions of 1.11m (north – south) x 2.18m (east – west); p. a galvanized bucket was located at the bottom of the stairs (west side). q. a red and an orange screw jack prop were located approximately 100mm and 95omm east of the south west corner of the stairwell, respectively. Both screw jack propers were approximately 160mm south of the southern edge of the stairwell. Another two screw jack props were positioned in line with and approximately 810mm south of the first screw jack props. Located between these four screw jack props was a piece of timber of approximate dimensions 95mm x 95mm x 1.28m. The timber appeared to be fixed to the slab and ran east – west approximately 760mm south of the southern edge of the stairwell. Two red screw jacks, approximately 760mm south of the southern edge of the stairwell. Two red screw jacks approximately 560mm apart, were chocked by timber and were angled at approximately 60 degrees to the horizontal, leaning to the north and bracing the underside of a second flight of stairs. A small timber wedge lay at the western end of the length of timber that was chocking the screw jack props; r. a piece of plywood approximate dimensions 400mm x 150mm lay adjacent on the north side of the length of timber chocking the two red screw jack props. A second piece of plywood, approximate dimensions 300mm x 200mm lay approximately 500mm to the northwest of the first piece of plywood. A number of rusty nails were observed on the floor in the area between north of the screw jack props. s. an aluminium step ladder, approximately 2.13m high, was leaning up against the southern brick wall of the laundry, adjacent to the stairwell; t. the second flight of stairs with eight risers, leading up to the first floor had the same approximate dimensions as the first flight of stairs and ran upwards from the landing in a southern direction; u. at the top of the second flight of stairs was a landing approximately 1.4m deep, opposite the top step and 1.16m deep opposite the stairwell. On the south side of the landing, directly opposite the top step, was an open void of approximate dimensions 1.925m (north – south) x 2.210m (east – west). The open void was approximately 3.03m directly above the front entrance area and had no fall prevention measures in place; v. neither the stairwell nor any of the first floor perimeter edges had any form of fall prevention in place. The stairs had no handrails; w. a trolley used for shifting bricks, referred to as a "brick buggy' was located on the first floor slab approximately 4.9m west of the void, and on the north side of the eleven (11) pallets of common bricks. Systems of Work prior to the accident 14. No handrails, midrails or kickboards were in place preventing persons falling from the perimeter or voids on the first floor slab. 15. The defendant owns, and uses, a hand rail system which it had planned to install the day after the incident occurred to Mr Buchanan, prior to the scheduled work commencing on the first floor. 16. No handrails or midrails were in place preventing persons falling from the stairs. 17. There was perimeter scaffolding in place, however it was not set up correctly and did not contain any handrails, midrails or kickboards preventing falls from heights. The scaffold platform was situated approximately 1.2 metres from the top of the first floor slab. 18. No documented occupational health and safety policy, procedures or safety management plans were in place prior to, or at the time of, the accident. 19. No documented or stated safe work method statements or procedures were in place prior to, or at the time of, the accident. 20. All workers had completed the general construction occupational health and safety induction course however no site specific induction training, instructions or information had been given to any workers on the premises. Systems of Work after the accident 21. Following the accident, three prohibition (7-73044, 7-73003 and 7-73011) and seven improvement notices were served on the defendant, five improvement notices on 20 December 2004 (7-73044, 7-73041, 7-73040, 7-73039 and 7-73033), two improvement notices on 21 December 2004 (7-3132 and 7-73127) and the three prohibition notices having been served on 20 December 2004. In addition to complying with improvement notices at the site for which they were issued, the Defendant has since unilaterally reviewed and implemented more stringent steps to improve safety on all of its sites, as follows: a) Full Brick Homes is in the process of implementing safety management plans for all sites. The defendant is also ensuring that risk assessments and safe work method statements are implemented on all sites. b) Handrail systems were placed around the entire perimeter of the first floor slab of the premises and around the voids for edge protection. c) The scaffold was dismantled and re-erected to the correct heights and included handrails, midrails and toe boards. 9 The Agreed Statement of Facts in matter No. IRC2569 of 2006, the company defendant matter, was tendered and relevantly reads: 3. At all material times the defendant carried on the business of contract construction work. 4. At all material times the defendant employed Mr Martin Barratt as supervisor. Mr Martin Barratt was also managing director of the defendant. 5. At all material times the defendant sub-contracted Andrew Buchanan to perform work at a site situated at 2 Wolli Creek Road, Banksia in the State of New South Wales (" the premises "). 6. On 17 December 2004 Mr Buchanan was at the premises with sub-contractor's, Danny Barratt and Tony Hamilton, who were bricklayers. The men arrived at the premises around 6.55am.They had been given the task of finishing off the brickwork on the garage on the ground floor and to replace chipped bricks from the garden bed. There was no work planned to be conducted on the first floor slab to the building on that day. 7. Martin Barratt was not present at the premises when the men arrived on 17 December 2004. Prior to 17 December 2004 he was at the premises once a day between 30 minutes to 3 hours depending on the work being carried out. 8. Prior to the arrival at the building site of Mr Buchanan, Danny Barratt and Tony Hamilton; a delivery of bricks by the supplying brick company had occurred. The truck driver had unloaded the bricks on the top of the first floor slab instead of delivering the bricks to the ground level. 9. Shortly after arriving at the premises Mr Buchanan, moved the brick buggy from the ground floor to the first floor of the building. 10. Mr Buchanan walked backwards and pulled the brick buggy up the stairs from the ground floor to the first floor. Danny Barratt was walking behind Mr Buchanan to check that the bricks were secure. When Mr Buchanan stepped onto the first floor slab, the brick buggy was positioned on the top step. He pulled the buggy up over the top step and onto the first floor slab. In doing so he stepped backwards, falling through a void that was positioned directly opposite about 1.6 metres from the staircase. He fell backwards about 3 metres to the concrete slab below, landing on his head and shoulders. 11. Danny Barratt was still on the staircase. 12. Mr Buchanan was admitted to St. George Hospital suffering from left subdural haemorrhage and skull fractures requiring drainage and subsequent cranioplasty, non-displaced fracture of T10 and burst fracture of LI requiring an open reduction and internal fixation on 23 December 2004. Subsequent events include anaemia requiring transfusion, sepsis requiring antibiotics and a tracheotomy. He was admitted as an inpatient at Prince of Wales Spinal Unit on 24 February 2005. He still has post-traumatic amnesia and is still being evaluated for a possible post-operative collection. He requires ongoing rehabilitation and referral to a brain injury rehabilitation specialist. 13. Mr Buchanan was not interviewed directly after the incident due to his medical condition, however he was interviewed on 11 November 2005. 14. On 17 December 2004 Inspector Denis Macready of the WorkCover Authority of NSW attended the premises. He observed the following:- a. a partly constructed cream brick residence on the corner of Wolli Creek Road and Arlington Street; b. both front boundaries of the property had temporary security fencing placed outside the existing red brick fence; c. brickwork had been completed up to the first floor concrete slab; d. scaffolding two metres high had been erected across the front and down each side of the house; e. eleven (11) pallets of red bricks were stacked two pallets high on the southern edge of the first floor slab; f. the front entrance had dimensions of approximately 3.34m (front entrance to the bottom stairs) by 2.24m wide. The floor was a concrete slab; g. the top of the first floor slab at the edge of the void was measured at approximately 3.03m above the ground floor slab in the front entrance area; h. at the southern end of the area was the main entrance approximately 1.3m wide with approximately 450mm of brickwork either side; i. a stack of three whole common bricks and five part common bricks were located approximately 1.5m from the eastern side of the entrance area and approximately 250mm in front of the front door opening. A single common brick lay in the front door opening; j. a small piece of masonite approximately 170mm x 60mm and a small block of wood approximately 80mm x 90mm x40mm lay just to the north of the stack of three bricks; k. a stack of common bricks approximate dimensions of stack, 900mm x 300mm x 970mm high were located adjacent to the western side of the front entrance; l. a piece of timber approximately 65mm x 65mm x 1m long lay with one end in the western side of the front opening, and the other end 300mm north of the western corner of the front entrance brickwork; m. a blue cap with open mesh back and sides lay top down at the western corner of the front entrance brickwork. Cap had words "CHEVROLET WORK SAFELY" embroidered in red letters on a white patch. The cap had redish stains on the brim, and back right half of the bottom edge of the cap. The cap had a small white label with the words "INDUSTRIE" in black letters and "URBAN DWELLER" in red letters; n. a flight of concrete stairs leading up to a landing, midway to the first floor, was located at the eastern half of the northern end of the entrance area; o. the stairs were approximately 190mm and had treads approximately 260mm wide. The landing at the top of this first flight of stairs had approximate dimensions of 1.11m (north – south) x 2.18m (east – west); p. a galvanized bucket was located at the bottom of the stairs (west side). q. a red and an orange screw jack prop were located approximately 100mm and 95omm east of the south west corner of the stairwell, respectively. Both screw jack propers were approximately 160mm south of the southern edge of the stairwell. Another two screw jack props were positioned in line with and approximately 810mm south of the first screw jack props. Located between these four screw jack props was a piece of timber of approximate dimensions 95mm x 95mm x 1.28m. The timber appeared to be fixed to the slab and ran east – west approximately 760mm south of the southern edge of the stairwell. Two red screw jacks, approximately 760mm south of the southern edge of the stairwell. Two red screw jacks approximately 560mm apart, were chocked by timber and were angled at approximately 60 degrees to the horizontal, leaning to the north and bracing the underside of a second flight of stairs. A small timber wedge lay at the western end of the length of timber that was chocking the screw jack props; r. a piece of plywood approximate dimensions 400mm x 150mm lay adjacent on the north side of the length of timber chocking the two red screw jack props. A second piece of plywood, approximate dimensions 300mm x 200mm lay approximately 500mm to the north-west of the first piece of plywood. A number of rusty nails were observed on the floor in the area between north of the screw jack props. s. an aluminium step ladder, approximately 2.13m high, was leaning up against the southern brick wall of the laundry, adjacent to the stairwell; t. the second flight of stairs with eight risers, leading up to the first floor had the same approximate dimensions as the first flight of stairs and ran upwards from the landing in a southern direction; u. at the top of the second flight of stairs was a landing approximately 1.4m deep, opposite the top step and 1.16m deep opposite the stairwell. On the south side of the landing, directly opposite the top step, was an open void of approximate dimensions 1.925m (north – south) x 2.210m (east – west). The open void was approximately 3.03m directly above the front entrance area and had no fall prevention measures in place; v. neither the stairwell nor any of the first floor perimeter edges had any form of fall prevention in place. The stairs had no handrails; w. a trolley used for shifting bricks, referred to as a "brick buggy' was located on the first floor slab approximately 4.9m west of the void, and on the north side of the eleven (11) pallets of common bricks. Systems of Work prior to the accident 15. No handrails, midrails or kickboards were in place preventing persons falling from the perimeter or voids on the first floor slab. 16. No handrails or midrails were in place preventing persons falling from the stairs. 17. There was perimeter scaffolding in place, however it was not set up correctly and did not contain any handrails, midrails or kickboards preventing falls from heights. The scaffold platform was situated approximately 1.2 metres from the top of the first floor slab. 18. No documented occupational health and safety policy, procedures or safety management plans were in place prior to, or at the time of, the accident. 19. No documented or stated safe work method statements or procedures were in place prior to, or at the time of, the accident. 20. The defendant owns, and uses, a handrail system which it had planned to install the day after the incident occurred to Mr Buchanan, prior to the scheduled commencing on the first floor. 21. All workers had completed the general construction occupational health and safety induction course however no site specific induction training, instructions or information had been given to any workers on the premises. Systems of Work after the accident 22. Following the accident, three prohibition (7-73044, 7-73003 and 7-73011) and seven improvement notices were served on the defendant, five improvement notices on 20 December 2004 (7-73044, 7-73041, 7-73040, 7-73039 and 7-73033), two improvement notices on 21 December 2004 (7-3132 and 7-73127) and the three prohibition notices having been served on 20 December 2004. In addition to complying with the improvement notices on the work site, Fullbrick Homes has since, unilaterally reviewed and implemented more stringent steps to improve safety on all of its sites as follows: a) The defendant is in the process of implementing safety management plans for all sites. The defendant is also ensuring that risk assessments and safe work method statements are implemented on all sites. b) Handrail systems were placed around the entire perimeter of the first floor slab of the premises and around the voids for edge protection. c) The scaffold was dismantled and re-erected to the correct heights and included handrails, midrails and toe boards. Relevant Principles 10 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). 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). 11 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]). 12 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, 115 ACrimR 104, 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. 13 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, is a relevant consideration. Of relevance particularly 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 14 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" . . . . . . . 15 Mr Barratt, the employer through his company, operated a small building business which company built extensions onto domestic property. It also constructed new full brick homes, duplexes and townhouses. He worked for his building company in the role of supervisor. The business began in the Nowra area and expanded to Sydney. Since 1999, the work has predominantly been in the Sydney metropolitan area. During the past 18 years the business has constructed more than 160 homes. 16 Mrs Barratt gave evidence in both matters. She was a former school teacher and serves as the office manager of the building company. She is the wife of the individual defendant. She was able to explain the financial affairs of the business very lucidly. The son, Daniel, is also a licensed builder. He is contracted to the family company as a bricklayer. The daughter, Carol, is contracted to the company as the architectural draftsman. Another son, Michael, was indentured as a carpenter's apprentice. This is a true example of a family business. 17 The company has received multiple awards from the Housing Industry Association. I have no doubt as to the quality of work they are able to produce. On the day in question work was being performed for the construction of a second storey and garage addition on a domestic property. The photographs however reveal a number of significant breaches of the Building Code and the Occupational Health and Safety Act 2000 at this building site. 18 The company had placed a perimeter fence around the site but scaffolding reached only up to the roof of the ground floor. Eleven pallets of bricks had been delivered and unloaded onto the concrete slab for the first floor. The bricks had been unloaded onto the first floor slab instead of being delivered to the ground level. They needed to be moved down to the ground level in order to be used to complete the garage being erected on the ground level. Mr Buchanan brought the buggy up from the ground floor to do this task. In bringing the buggy up over the top step he stepped backwards and fell down into an unguarded void. He fell three metres, striking a concrete slab on the ground floor. 19 Mr Buchanan suffered a brain injury and back injury with complications including sepsis. He has not returned to work. 20 An examination of the site revealed not only did the scaffold not go beyond the roof of the ground floor, but there was also no handrail, no mid rails nor kickboards in place around the void or around the perimeter of the first floor slab. There were no rails on the stairs. The scaffolding also contained no handrails, mid rails nor kickboards. There were on site no documented health and safety policy or procedures and no planned work methods for each task to be performed on site. Mr Barratt asserts: If the bricks had not been unloaded onto the first floor there would have been no risk for anyone to bring the brick buggy up the stairs to the first floor. He further asserts the company owned and used a handrail system which it had planned to install the day after the incident prior to the scheduled work commencing on the first floor. 21 Mr Barratt was responsible for the way the work was performed on this worksite. An analysis of the site reveals significant breaches of the Act. The particulars against the defendant company assert there was a failure to ensure there was edge protection around the void and perimeter edges, there was no edge protection around the stairs, there was no system of work developed for the placement of those protections. There was no system of work to ensure access to parts of the premises that did not hold those protections. There was no adequate instruction, training and information provided to its sub-contractors. 22 The pleadings against Mr Barratt assert he, as the directing mind of the defendant company, failed to provide edge protection on the void and edges of the first floor slab and on the stairs, failed in the same way to ensure a safe system of work to ensure persons other than employees could not fall from a height or through a void and failed to properly instruct and inform his employees and train his sub-contractors. 23 A level of both specific and general deterrence must be factored into this consideration as to penalty. These principles were 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] 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 (NSW) (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . 24 Specifically, Mr Barratt continues to operate his company in the construction industry. Most of the sub-contractors are family members if not employees and he has an obligation to ensure their safety and to ensure each site on which his company works provides safe working to persons on the site so specific deterrence is a necessary element. Once more this case necessitates the need for an element of general as well as specific deterrence in order to reiterate the need for safe working procedures, especially in the building industry. I find both elements of deterrence are relevant elements in the consideration of penalty against each defendant. 25 The question of foreseeability must also be considered. A charge cannot be defended with the proposition of Mr Barratt's: we would not accept a delivery of bricks be made to the first floor. 26 Safe working methods require a risk assessment of all tasks on site. There should have been a system in place for the acceptance of deliveries but that is not a particular relied upon in the breach. With one glance at this site, even an untrained eye would recognise the dangers facing any person walking on that first floor slab. As pleaded, the site had no guards around its perimeter nor around its staircase, nor around the internal void. While it is asserted hand rails were to be erected the next day such would not have alleviated all the breaches to safety on this building site. Yet there were simple remedies available to redeem such failures. Such remedies are required in basic safe practices for work at height and around voids, staircases and the perimeters of buildings. While Mr Barratt might assert he was going to put some rail protections up the next day that can be no defence to all the other elements of the breach which exposed Mr Buchanan and the young Mr Barratt to an unsafe worksite. 27 Mr Buchanan suffered serious impairments in the incident. Mr Barratt's own son, Danny, and another worker, Mr Hamilton, were on the site and beginning work that morning. While the court's attention, in its assessment of the objective seriousness of the offence, must be the risk to safety, that risk, on this site, became a reality. The words of Hill J in Tyler v State Electricity (1993) 47 IR 1 (at 5) I find apposite. The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the 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 (Inspector Page) v Walco Hoist Rentals Pty Limited & Anor (2000) 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: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; WorkCover Authority (NSW) (Inspector Hannah) v Wonar Pty Ltd (at 9); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; Albury City Council (at 408-409); Lawrenson Diecasting Pty Ltd (at 476); WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383. Generally the risk of requiring workmen to traverse a building site, a floor above the ground, without scaffolding nor rails around voids and perimeters presents a serious risk to safety. This was a serious breach of the Act. 28 The defendants are entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the offence. In Alcatel v WorkCover Authority (1996) 70 IR 99 (at 106), the Full Bench observed: We accept there are good policy reasons for the encouragement of early pleas of guilty and the giving of assistance to the WorkCover Authority in its investigation of suspected breaches of the OHS Act. A plea of guilty may attract a greater degree of leniency. The court must be satisfied the plea reflects contrition on the part of the defendant. In R v Winchester (1992) 58 A Crim R 345, Hunt CJ at CL held (at 350): A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. I accept from both defendants' there were early pleas of guilty which reflect an expressed contrition for the breaches. 29 Since the subject incident, the individual defendant has taken significant steps to address the risk identified and the company has adopted the following additional measures since the accident: · Safe Work Method Statements for bricklaying and carpentry. · Developed and maintained a site induction procedure for all workers. · Obtain and maintain all sub-contractor details for Safe Work Method Statements, including licence details, worker's compensation insurance details, public liability insurance, trade licence details and green card details. · Obtained a hazard material register. · Three of the employees now hold traffic management tickets (Martin Barratt, Danny Barratt and Michael Barratt). · Two of the employees now hold scaffold tickets (Danny Barratt and Michael Barratt). · Two of the employees now hold hoist tickets (Danny Barratt and Michael Barratt). · All of the site-based employees have completed the WorkCover construction induction certificates (Martin Barratt, Danny Barratt, Michael Barratt and Carol Barratt). · Three of the employees have completed the Housing Industry Association OH&S safety management plan course (Danny Barratt, Carol Barratt and Michael Barratt). · Three of the employees have completed the WorkCover Forklift Tickets (Carol Barratt, Michael Barratt and Danny Barratt). 30 As part of the standard work practices on site, the company now ensures that each person on site completes a site induction, and signs a site induction register. A daily diary is maintained which includes Mr Barratt's continuing review and audit of site induction, green card inspections and assessments as to whether the safety measures (including scaffolding) are adequate. Details of all sub-contractors working on the company's building sites are now kept. 31 I accept the assistance and advice of experts were brought in to advise, to develop and to upgrade the company's safety management plan. 32 I accept Mr Barratt's expressed distress and regret for the incident. I accept the company and the family have assisted Mr Buchanan since the incident. There was full co-operation with the WorkCover Authority in their investigation of the said breaches. As Mr Barratt said through him the company is now "very focused on workplace safety". 33 Financial evidence was placed before the court. This is clearly a family business. The company has a turnover of approximately $2 million reflecting the endeavours of five family members with various qualifications contributing to the company's success through their relevant professions and trades. The company pays what I perceive as a modest salary to Mr & Mrs Barratt and as well to their sons and daughter. 34 In the last financial year there has been a significant financial input, as demonstrated in the financial returns of the company, to ensure safe working procedures were adopted and implemented by the company and the relevant trades. Money has been spent on planning, organising and asking advice on safe work practices. Risk assessments of each task have been conducted and an investment has been made in new scaffolding and safety equipment. 35 Workers' compensation premiums, given the seriousness of the incident, have been dramatically increased. 36 The company has few assets. Mr & Mrs Barratt have investments in two small properties on the South Coast from whence they came and where they intend to retire. They rent accommodation in Sydney. There is one family car. The company owns the premises from which it operates. There is a bank mortgage on those premises. 37 Although the turnover is significant, I accept that each year the company has made a loss and continues to do so - although that loss will not be as large in the future financial years now the upgrade of equipment and appropriate investment in safe working has been completed. 38 The circumstances in the case requires the court to weigh up the seriousness of the offence in the context that the defendants are an individual and his family's business whose assets are a small home and a tiny rental property. 39 The company has provided significant employment for the family and other trades people. The business has contributed to the community of New South Wales through its efficiencies and the quality of its work. Its success and unblemished industrial history reflects this. Subjectively, it has reacted appropriately to ensure, through every means available to it, and at considerable expense, that from henceforth the family company provides safe working. 40 Mr & Mrs Barratt personally have, without exaggeration, laid their affairs before the court and both have expressed contrition. This contrition is also reflected in the financial commitment now made and reflected in their company procedures to safe working. Both Mr & Mrs Barratt took less salary last year to ensure the company expenditure on upgrading was achieved. All salaries paid to family members have been frugal. The balance of the business income has been costs of goods and equipment. 41 I weigh up the objective seriousness of the offence but in the circumstances take into account the economic status of both the company and the personal defendant in order to ensure each penalty is not oppressive. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context of breaches of the Act: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Ltd [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: "The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive." 42 The maximum penalty against the company is $550,000. The maximum penalty against the personal defendant is $55,000. 43 There is no recorded conviction against either defendant. While operating in a dangerous work endeavour on building sites each presents with a fine industrial record. 44 Accordingly, I find: · in matter No. IRC2568 of 2006, the defendant, Mr Martin Barratt, guilty; · the defendant is to be fined in the sum of $15,000.00 with a moiety to WorkCover Authority; · in matter No. IRC2569 of 2006, the defendant, Full Brick Homes Pty Ltd, guilty; · the defendant is fined in a sum of $45,000 with a moiety to WorkCover Authority; and · there shall be one order as to costs for the prosecution. Costs to be agreed or assessed with leave to approach the court. Orders 45 Accordingly, the Court makes the following orders: 1. In Matter No IRC2568 of 2006, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $15,000 with a moiety to WorkCover Authority of New South Wales. 3. In Matter No IRC2569 of 2006, I find the defendant guilty of the offence as charged. 4. The defendant is fined in the sum of $45,000 with a moiety to WorkCover Authority of New South Wales. 5. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. 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.