Industrial Court of New South Wales CITATION: Inspector Ritchie Green v Coastal Fabrications Pty Ltd [2006] NSWIRComm 191 PROSECUTOR: Inspector Ritchie Green PARTIES: DEFENDANT: Coastal Fabrications Pty Ltd FILE NUMBER(S): IRC 7054 of 2004 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 -s 8(1) - plea of guilty - plea entered on first day of 5 day hearing - defendant pleads to a substantially reduced charge - work performed on reservoir - use of unusually curved work platform on scaffolding - work performed at height - work platform not certified - scaffolding not stable - lack of protective railings - failure to comply with standards, codes and Regulation - two employees fall 6 to 7 metres when work platform detaches from scaffolding and falls - designer of platform pleads guilty to charges in separate proceedings - application of principle of parity - serious breach found - penalty imposed CASES CITED: Inspector Green v Mamfe Pty Ltd and Colin Crouch [2005] NSWIRComm 429 HEARING DATES: 01/06/2006 DATE OF JUDGMENT: 06/07/2006 PROSECUTOR: Mr O'Neil of counsel SOLICITORS: Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT: Mr B McManamey of counsel SOLICITORS: Elliott & Sochacki JUDGMENT: - 7 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 7 June 2006 Matter No IRC 7054 of 2004 INSPECTOR RITCHIE GREEN v COASTAL FABRICATIONS PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 191 BACKGROUND 1 In December 2004, Inspector Green commenced proceedings against Coastal Fabrications Pty Ltd (Coastal Fabrications) alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000. The alleged breach concerned the construction of a reservoir and booster pumping station at South Grafton and arose when a quite novel working platform detached and fell from scaffolding around the reservoir, putting at risk three employees working on the scaffolding at the time, two of whom fell between six and seven metres and were seriously injured. 2 The previously titled Department of Public Works and Services had contracted with the Department of Land and Water Conservation to provide project and construction management services at the site. A company called Mamfe Pty Ltd (Mamfe) was engaged to construct the reservoir and booster pumping station and it had engaged Coastal Fabrications to supply and erect the reservoir roof and to undertake associated metal work at the premises. 3 On 4 December 2000, Coastal Fabrications had on site Mr Will, who was the company foreman and Mr Jones, who was a metal fabricator and welder. Mr Will and Mr Jones were to use the scaffold platform to perform the work of erecting a permanent steel platform to the top of the reservoir. The reservoir wall was approximately ten metres high and the platform was set approximately 7.2 metres high. Mr Jones and Mr Will commenced drilling holes to locate bolts which were to secure the permanent steel platform to the reservoir wall and, in the course of performing this work, used a ladder which was placed on the platform. While Mr Jones was standing on the ladder using a vibrating percussion drill, he noticed movement in the scaffold platform: he scrambled up the ladder holding on to the permanent steel platform, but the scaffold platform slid off the scaffold towers, detaching from the scaffolding and fell to the ground. A contractor engaged by Mamfe, Mr Reynolds, and Mr Will both fell to the ground: Mr Reynolds was knocked unconscious after falling over seven metres, while Mr Will fell over six metres with the 540 kilogram scaffold platform bouncing and falling onto him so that he was unable to breathe. A crane was arranged to lift the platform from Mr Will. Mr Reynolds received multiple injuries, including injuries to his back, hip, lacerations to his left elbow, right shoulder and the back of his head as well as swelling of muscle tissue to his left thigh and swelling of both knees. Mr Will received multiple injuries including a fractured pelvis, multiple fractures to both shoulder blades, a compression fracture of the fourth thoracic vertebra, bilateral lung contusion and rhabdomyolysis. Mr Will suffered internal bleeding for about four days. 4 The Inspector commenced proceedings for breaches of s 8(2) of the Occupational Health and Safety Act 2000 against Mamfe and its managing director and site foreman Mr Crouch, as well as these proceedings for breach of s 8(1) of the Act against Coastal Fabrications. Mamfe and Mr Crouch ultimately entered pleas of guilty to an Amended Application for Order, with Mamfe being fined the sum of $65,500 and Mr Crouch being fined $6,000. (See Inspector Green v Mamfe Pty Ltd and Colin Crouch [2005] NSWIRComm 429). In that case, there was considerable evidence as to the personal circumstances of Mamfe and Mr Crouch and a history of considerable work in this part of the building and construction industry without having recorded a breach of occupational health and safety legislation. An amount of financial information was closely scrutinised by the prosecutor, having regard to the provisions of the Fines Act. EVIDENCE 5 Initially, Coastal Fabrications entered a plea of not guilty, and the matter was set down for a five day hearing. Late in the week prior to the hearing commencing, the Court was advised that there would be a plea of guilty entered to an Amended Application for Order and that the parties would use one of the days set down for hearing the evidence and submissions on penalty. On the first day listed for the hearing, as foreshadowed, the prosecutor moved on an Amended Application for Order and the defendant immediately entered its plea of guilty. 6 At the sentencing hearing conducted later in the week, the prosecutor tendered an extensive Agreed Statement of Facts, a factual inspection report prepared by a WorkCover inspector, a large number of photographs, a document from Coastal Fabrications dealing with its occupational health and safety plan and a further document from the defendant being a work method statement. The Agreed Statement of Facts is an appendix to this judgment together with the Amended Application for Order. 7 The prosecutor also referred to extracts from Australian Standard 1576.3 of 1995 dealing with scaffolding and AS 4576 of 1995 dealing with guidelines for scaffolding and extracts from AS 1576.1 dealing with general requirements for scaffolding. There were also extracts from WorkCover's Health and Safety Code of Practice, Technical Guidance 2001. A certificate of prior convictions indicated that the defendant had no previous record of breaching occupational health and safety legislation. 8 For the defendant, an affidavit of Reinhard Tilgner was read. Mr Tilgner was the director and manager of Coastal Fabrications, a company he had established in 1989. He started as a small business operating from the garage of his home and his first employee was Mr Will. By 2002, the business had grown and the company had seven employees. At that time, Mr Will was the foreman and, on an informal basis, was considered to be the occupational health and safety officer for the defendant. Mr Tilgner said that he relied upon Mr Will to advise him on safe methods of performing work tasks. 9 The usual practice of the defendant was to delegate decisions concerning the safe method of performing work to Mr Will. Mr Will had been given authority to spend money on behalf of the defendant to acquire or hire equipment necessary to carry out work in a safe and efficient manner. He was also authorised to refuse to have employees of the defendant perform work where he was not satisfied that the work was being performed in a safe manner. Mr Will was also authorised to hire equipment necessary for safety purposes without seeking approval from Mr Tilgner. Mr Tilgner had never questioned his right to make arrangements for the hire of equipment such as cherrypickers and scissor lifts, but it was the usual practice for Mr Will to seek approval for any proposed hiring and, on all occasions, Mr Tilgner had given that approval. 10 On 8 November 2002, the defendant entered into a contract with Mamfe to perform work on a reservoir being constructed at South Grafton: the defendant was to supply and erect the reservoir roof and associated metalwork. At this time, Mr Will was, on an informal basis, the occupational health and safety officer of the defendant and was the person most qualified in the company to make decisions concerning the safe way to perform work. 11 Mr Tilgner said that the project manager for the site was the Department of Public Works, and the defendant was required to have an occupational health and safety plan and a work method statement approved by the Department. Those two documents were in evidence. Mr Tilgner believed that, because the plan and statement had been (as he understood) approved by the Department, having been forwarded by Mamfe, they complied with the requirements of occupational health and safety legislation. The Department of Public Works had also hired a consultant to perform site compliance audits, meaning that all equipment on site was subject to scrutiny by the Department and its experts. 12 Prior to commencing work at the reservoir, Mr Will was directed to attend the site to determine what equipment was needed to carry out the work: Mr Will was specifically required to consider the equipment necessary for the work to be carried out safely. It had been agreed that Mamfe would provide any scaffolding required to perform the work and Mr Tilgner was aware that Mamfe employed a licensed scaffolder. There were no employees of the defendant who were licensed to erect scaffolding. 13 Mr Will attended the site on 14 November 2002 after which Mr Will and Mr Tilgner had a discussion about the requirements for safely performing the work. In this discussion, it was agreed that the workers would need safety harnesses, lanyards, ropes and a fall arrester. Mr Will told Mr Tilgner that scaffolding was available on site but he did not advise that there were any concerns about the safety of the scaffolding, nor did he indicate that the scaffolding was unusual in nature. Mr Tilgner said that, at all times, he relied upon Mr Will to advise him concerning safe work issues. 14 On 3 December 2002, Mr Tilgner had a conversation in his office with Mr Will and, in that conversation, reminded him that there had been an accident on another reservoir early in 2002 where there had been a fatality. The defendant had not been working on that job but, during the meeting, Mr Will was informed that, as the person in charge, Mr Tilgner relied upon him to ensure that the job was carried out safely. Mr Will was also told to send off site any employee who did not comply with his safety instructions. 15 Mr Tilgner stated that, had he been made aware of concern about the scaffolding, he would not have permitted his employees on the site until such time as proper scaffolding had been provided. He was very disappointed to learn that there had been an accident, as he had always been concerned about work safety and the welfare of his workers. 16 Mr Tilgner acknowledged that, as the employer, the defendant had a duty to ensure the safety of its workers: in this case he did not make sufficient enquiries about the scaffolding and did not make enquiries to ensure that there was a safe work method statement which adequately dealt with the tasks associated with working at heights. 17 In December 2003, the business of Coastal Fabrications was sold to another company. Mr Tilgner said he had sold the company because he had decided to retire having reached 60 years of age and having some serious health concerns. The business was sold for $270,000 of which $40,000 was used to pay outstanding company tax, $72,000 was used to pay back loans for equipment, $22,500 was paid for long service leave entitlements due to employees and approximately $100,000 was paid into a superannuation fund. The balance was paid out to the directors of the defendant. 18 Mr Tilgner said that, at the present time, the defendant was in the process of being wound up and had no assets. A letter from the defendant's accountant indicated the way in which the proceeds of the sale of Coastal Fabrications had been disbursed. Mr Tilgner said that he was now retired and he had no intention of resuming manufacturing, fabrication or similar work. SUBMISSIONS 19 While the prosecutor accepted that the unique and curved working platform designed by Mr Crouch was an attempt to perform work more safely, the work platform and scaffolding on the day of the accident had failed to meet many of the requirements of accepted standards and industry codes. The defendant's own occupational health and safety plan in dealing with ladders directed that they would not be used where scaffolding or other suitable working platforms were required. Further, ladders were to be secured both top and bottom when otherwise in use. AS 1576.3:1995, dealing with scaffolding, in Pt 3 laid down general performance requirements. A prefabricated or tube-and-coupler scaffold system was required to be tested for strength and stiffness in accordance with other clauses of the Standard and to comply with stability requirements laid down in AS 1576.1. AS 1576.1:1995 dealt with general requirements for scaffolding and, in Clause 2.5.5 referred to the requirement of edge protection except in specified circumstances. Clause 3.6 dealt with access to and egress from working platforms and laid down that safe access and egress from all working platforms was to be provided. Under AS 4576:1995, Guidelines for Scaffolding, Clause 8.4 dealt with stability and the requirement that a scaffold was to have stability to prevent it from overturning. Methods of achieving stability were laid down. In Clause 8.8, the Standard stated that edge protection should be provided to the open sides and ends of any platform from which a person or object could fall two metres or more. In Clause 8.9, it was laid down that every working platform must have safe and suitable access and egress. In particular, it was stated by reference to an illustration that, where a working platform was too low, then ladders must not be used to gain extra height. All of these provisions should have been well known to the defendant and considered before the defendant started work on the site. In particular, the scaffolding was not stable and had no edge protection nor end railings. 20 Under the Occupational Health and Safety Regulation 2001, Clause 94 required a designer of plant to ensure the design of the scaffolding complied with relevant standards listed in the Schedule. The Schedule made reference to AS 1576. Clause 56 stated that an employer must ensure that risks associated with falls from a height were controlled by the use of specified measures including the provision and maintenance of a stable and securely fenced work platform and, where that was not reasonably practicable, by secure perimeter screens, fencing, handrails and other forms of physical barriers capable of preventing the fall of a person. The Regulation also laid down, in Clause 107, the process for applying for registration of plant design and in Clause 136 stated that an employer must ensure that plant designed and manufactured after the commencement of the Regulation and of a kind specified in Clause 107 was not used unless the plant had a current design registration number issued under nominated provisions. Clause 229 dealt with the responsibilities of subcontractors and stated that a subcontractor must not commence structural work at a place of work unless the subcontractor had undertaken an assessment of the risks associated with the work to be carried out and provided to the principal contractor a written safe work method statement that included a copy of the assessment of risks. 21 Mamfe's working platform and scaffolding did not comply with these various requirements and had not been checked by the defendant. Having regard to the height at which the work was being performed, there was a risk of not only serious injury but death by falling from the work platform and scaffolding. The engineer's report had indicated the extent of the defects in the design. 22 It was accepted that the maximum penalty in this case was $550,000. General deterrence was an important factor especially as this work was being performed in the building industry and in light of the well known dangers of that industry. It was accepted that specific deterrence may not figure significantly in this case but, even though the business had been sold and Mr Tilgner had said he was no longer in the industry, there should nevertheless be some aspect of the penalty that reflected specific deterrence. 23 The prosecutor accepted that the defendant did not design the structure but it was important to recognise that the defendant's employees were using the scaffolding in circumstances where the risks were apparent. 24 The defendant had stated its complete reliance on Mr Will but it was clear on the evidence that the defendant's director was involved in writing the safe work methods. Mr Tilgner could not delegate his obligations under the Act and in his evidence accepted that he did not check the scaffolding and the work method carefully enough. 25 As to foreseeability, there was clearly a risk of falling from a height in circumstances where the work platform was not secured to the scaffolding, the scaffolding was not stable and where there was an absence of rails at the end of the work platform. The Regulation also recognised the need to register and have certified the scaffolding used in workplaces and this had not been checked by the defendant. The remedial steps were quite easy to implement but, importantly, the defendant had to be aware of obligations under the Regulation and the Standards. 26 The fines imposed on Mamfe and Mr Crouch were relevant to the issue of parity but it was to be noted that the Court took the approach of setting a single amount as reflecting the criminality of the offence and dividing that amount between Mamfe and Mr Crouch: for the purposes of parity, the sum to be considered was therefore $71,500. 27 In the present case, while the plea of guilty had been entered to an Amended Application for Order, this was done virtually at the beginning of a five day hearing. In those circumstances, the Court might feel it appropriate to allow a discount less than the usual maximum of 25 per cent. The defendant was entitled to have taken into account its good record over a period of years while operating in a hazardous industry. 28 For the defendant, it was submitted that a number of matters had been put quite fairly by the prosecutor but that it was important to give recognition to the fact that the defendant had operated for 13 years in a hazardous industry without breaching occupational health and safety legislation. While there was a role for general deterrence, how that objective might be achieved in the present case had to be considered in the light of what actually happened with this defendant. While the breach was conceded to be serious, here there was an unusual piece of scaffolding equipment being used by persons who were qualified to erect and assess the scaffolding whereas the employees of the defendant and Mr Tilgner were not so qualified. It was accepted that there was a need to pay closer attention to certification requirements and the provisions of Australian Standards and the Regulation. Nevertheless, this was a two-person business that lacked the resources of large operators, yet the process of laying down safe working methods had been successful over a period of 13 years: this was not a case where there was no attention paid to safe working systems. This method involved Mr Will inspecting a proposed worksite and both Mr Will and Mr Tilgner developing the occupational health and safety plan or statement. In this case, they relied on Mamfe and Mr Crouch as the scaffolders and Mr Tilgner relied on Mr Will for information about the site before they both became involved in writing the work method statement. In relation to specific deterrence, the company had been sold, Mr Tilgner had retired and was not going to be involved in business in the future. In those circumstances, specific deterrence had no real role. 29 In relation to foreseeability and the availability of remedial steps, it was accepted that, if the defendant had been fully armed with knowledge of the site, then the risks would have been foreseeable and the remedial steps would not have been so difficult to take. It was important to recognise that Mr Tilgner, if he had known of these risks, would not have sent his workforce onto that site until the risks were eliminated. Mr Tilgner had not designed the scaffolding and he did not control the erection of it nor did he control the site. 30 There should be a significant discount for the plea of guilty entered on the first day of hearing. That plea had been entered to reduce or materially altered particulars with nine proposed particulars being reduced to approximately four in number. When that amendment was proposed by the prosecutor, the defendant was in a position to change its plea and full recognition of that factor should be given in the discount provided by the Court. DELIBERATION 31 The Agreed Statement of Facts in the present matter clearly establishes the objective seriousness of the defendant's offence. While Mamfe's working platform was innovative and an apparent attempt to provide greater safety for those working on those scaffolding, there were glaringly obvious deficiencies that did not require specialist scaffolding skills to recognise as risks to safety. While the scaffolding itself was chained to the reservoir, the heavy work platform relied solely on its own weight for stability. There was no protective edging in accordance with the Standard and industry code and the end of the platform was open with no railing being installed. The scaffolding itself was sparsely supported including at the base, raising issues of potential instability. All of these matters, as already indicated, were dealt with by Australian Standards, WorkCover Codes and the Regulation yet were not observed by the defendant as presenting a risk to its employees. 32 The work was being performed at height and I agree with the submission of the prosecutor that, apart from the serious injuries actually received on the day of the accident, there was an obvious risk of potentially very serious injury or death flowing from a fall from the scaffolding set at this height: the risks were foreseeable and the remedial steps were simple. Of further concern is the fact that the defendant's own work method statement recognised the danger of using a ladder on scaffolding to achieve a greater height rather than adjusting the scaffolding. The use of a ladder in such circumstances was specifically prohibited by the defendant's own work method statement but was ignored in circumstances where the defendant's two employees were using a vibrating percussion drill on the wall of the reservoir. The entire circumstances of this work so clearly presented a risk to safety that it was quite surprising that nobody working at the site that day raised the issue. 33 While the particulars mostly concentrate on the inadequacy of the safe work method statement, the tasks associated with working at heights, the failure to ensure that the scaffold platform was maintained at an appropriate height for the work that was being undertaken and a failure to ensure adequate fencing at the exposed ends of the scaffold platform, the particulars also referred to the failure to ensure that the unusually curved scaffolding met design registration requirements. This last particular is not directed at the circumstances of the manufacture of the platform, (that was solely in the hands of Mamfe and Mr Crouch), but directs attention to the provisions which require certain certification including certification of the load and the design. Those certifications are available to be checked but that step was not taken by the defendant. Further, it was not sufficient for Mr Tilgner to seek to delegate the safe working measures to be taken to Mr Will and Mamfe: he had to play a more active role. Having regard to these matters, the defendant's acts and omissions amount to a serious breach of the Occupational Health and Safety Act 2000. 34 Despite the submission for the defendant, I am unable to conclude that general deterrence should have some lesser or limited role to play in setting an appropriate penalty. Every case dealt with by this Court demonstrates the myriad of ways in which risks can arise to the safety of employees and demonstrates the need for constant vigilance when dealing with workplace safety. This accident involved persons working in the building and construction industry, an industry which, by its very nature, exposes employees to risks to their safety. This particular case provides an example of why workplace issues should not be taken for granted, such as the assumption that the scaffolding was appropriate and safe because Mamfe and Mr Crouch were qualified in that area. Specific deterrence raises a different issue in this case. The defendant company has been sold, its director Mr Tilgner has retired both because of age and for reasons of health and he does not propose to resume manufacturing, fabrication or similar work. His statements to that effect in his affidavit were accepted without cross-examination and, having regard to the fact that this is, in effect, a family company, I am satisfied that specific deterrence has a very limited role in the setting of an appropriate penalty. 35 The prosector has frankly conceded that the principle of parity has application and that the defendant's offence should be considered as involving less criminal culpability than that of Mamfe and Mr Crouch. I accept the force of that submission and concession, noting the different nature of the charges and the role of Mamfe and Mr Crouch in bringing into operation the unusually curved working platform. While accepting that proposition, it is not to be understood as suggesting that the differently focused charges against this defendant are not serious. There are also to be considered differences in the evidence relied upon in both cases: it is not to be assumed that the final penalty in the present proceedings must automatically be less than that imposed upon Mamfe and Mr Crouch because very different considerations have been raised in both sets of proceedings. Given that note of caution, nevertheless, the principles of parity will be applied in the present proceedings. 36 As to subjective factors, the primary fact relied upon by the defendant is its clear record after 13 years of operation in a hazardous industry. That is to be regarded as a good industrial record and the defendant is entitled to have that record carefully considered. The defendant is said to be a small business primarily run by Mr Tilgner and his family; a matter not put in issue by the prosecutor. The financial position of the company and Mr Tilgner and his family was not put forward to be evaluated having regard to the provisions of the Fines Act and I proceed on the basis that there is a capacity to pay a fine imposed in serious criminal proceedings by this Court. 37 The timing of the plea raises questions as to the extent to which the defendant is entitled to the benefit of the usual discount of 25 per cent for an early plea. The plea was indicated just prior to the Court commencing a five day hearing and that fact would ordinarily weigh against the granting of a significant discount. The defendant, however, argues that the Amended Application for Order reduced or modified the particulars in important respects and confined the nature of the case originally brought against it. On a consideration of the original Application for Order and the Amended Application for Order, I am prepared to accept the defendant's submission in this regard notwithstanding the otherwise lateness of the plea. I will allow a discount of 20 per cent for the plea of guilty entered by the defendant in these proceedings as amended. ORDERS 38 1. The defendant Coastal Fabrications Pty Ltd is found guilty of the breach of s 8(1) of the Occupational Health and Safety Act 2000, as particularised in the Amended Application for Order to which it has pleaded guilty. 2. The defendant is fined the sum of $62,000 with half the fine to be paid to the prosecutor as a moiety. 3. The defendant is to pay the costs of the prosecutor as agreed, or in the absence of agreement, as ordered by the Court. A P P E N D I X AGREED STATEMENT OF FACTS and AMENDED APPLICATION FOR ORDER 1 At all material times the Prosecutor was an Inspector appointed under Division 1 of Part 5 and empowered under Section 106 of the Occupational Health and Safety Act 2000 to institute proceedings in this matter. 2 The Prosecutor conducted investigations into the circumstances surrounding an incident ( incident ) which occurred on 4 December 2002 at a construction site identified as Waterview Seelands Eatonsville Water Supply Site located at Hampton Road, South Grafton in the State of New South Wales ( premises ), in which Bruce Will ( Will ) and Brian Reynolds ( Reynolds ) sustained serious injuries and Darren Jones ( Jones ) was exposed to immediate risk of serious injury. 3 At all material times, the Crown in the Right of the State of New South Wales (Department of Public Works and Services, now the Department of Commerce) ( Department ): 3.1 contracted with the Department of Land and Water Conservation to provide project and construction management services at the premises; 3.2 conducted and was engaged in the business of project and construction management at the premises ( Department's undertaking ); 3.3 utilised the premises in the course of the Department's undertaking as a place of work; 3.4 employed persons including Jon Ingram, Project Officer and Site Supervisor, Thomas Blow, Superintendent's Representative, Eric Ritchie and Kenneth Johnson to perform work at the premises; 3.5 engaged MAMFE Pty Limited (ACN 001 525 337) ( Mamfe ) to construct a reservoir and booster pumping station at the premises and to complete all works necessary (including the provision and maintenance of scaffolding) to permit the reservoir and booster pumping station to be completed; 3.6 provided project and site supervision at the premises; 3.7 was entitled to issue directions in relation to material and works at the premises; 3.8 was a controller of the premises, the reservoir and scaffolding at the premises in the course of its undertaking. 4 At all material times, Mamfe: 4.1. was an incorporated company with its registered office located at c/- Rutherfords, 53 Carrington Street, Lismore, NSW, 2480; 4.2 carried on a construction business trading as 'Kennedy Brothers'; 4.3 contracted with the Department to construct a reservoir and booster pumping station at the premises and to complete all works necessary (including the provision and maintenance of scaffolding) to permit the reservoir and booster pumping station to be completed ( Mamfe's undertaking ); 4.4. utilised the premises in the course of Mamfe's undertaking as a place of work; 4.5 was the principal contractor at the premises; 4.6 employed Nathan Arthur ( Arthur ), crane driver/labourer, Mark Ritchie ( Ritchie ), labourer and Colin Crouch ( Crouch ), Managing Director and Site Foreman at the premises; 4.7 engaged Brian Reynolds (ABN 59 835 573 054), subcontractor, to perform services as a steel fixer and labourer at the premises; 4.8 engaged Coastal Fabrications Pty Limited (ACN 006 212 808) ( Defendant ) to supply and erect a reservoir roof and undertake associated metal work at the premises; 4.9 designed, erected and supplied scaffolding for use by persons working at the premises in the course of its business. 5 At all material times, Crouch: 5.1 was a joint director and shareholder (with Patricia Crouch) of Mamfe; 5.2 was a licensed scaffolder and designed the scaffolding supplied to the premises on behalf of Mamfe; 5.3 was the Managing Director of Mamfe, and Site Foreman at the premises. 6 At all material times the Defendant: 6.1 was an incorporated company with its registered office located at 'William Nicholls', 109 Dalley Street, Mullumbimby, in the State of New South Wales; 6.2 was the trustee for the Tilgner Family Trust; 6.3 carried on a construction business; 6.4 contracted with Mamfe to supply and erect a reservoir roof and undertake associated metal work at the premises; 6.5 employed Will, foreman, and Jones, metal fabricator and welder, at the premises. Background 7 The Department was awarded a contract with the Department of Land and Water Conservation to provide project and construction management services in relation to the construction project at the premises. 8 On or about 16 July 2002, Mamfe was awarded the contract for the construction project by the Department. 9 In or about June 2002, Crouch designed an unusual modular scaffolding system including a curved platform to fit around the concrete reservoir ( scaffold platform ). Crouch designed the scaffolding in his capacity as an employee of Mamfe, as part of the undertaking of Mamfe. 10 In approximately late July 2002, Allens Welding manufactured the modular scaffolding. 11 The scaffolding was used on a regular basis at the premises, being erected and re-erected to suit various tasks associated with the construction project. 12 The scaffolding consisted of two scaffold towers, chained to the reservoir wall, supporting the curved scaffold platform. There was a handrail down the length of the scaffold platform, however, no handrails at the ends of the platform. 13 On or about 14 November 2002, Will visited the premises to install the first hold down bolts for the main centre beam for the reservoir roof. Whilst at the premises, Will, who was also the OHS Officer for the Defendant, had a conversation with Crouch to clarify the method of scaffolding to be used to the outside of the concrete reservoir. Erection of scaffolding 14 On or about 3 December 2002, Crouch, Ritchie and Reynolds erected two scaffolding towers. Each tower ( scaffolding tower ) consisted of four individual scaffolding frames approximately 1.8 metres in height. The towers, which were preassembled, were manoeuvred into the designated location with a Pin Jib Crane operated by Arthur at the premises. 15 The scaffold platform was raised with the Pin Jib Crane and manoeuvred into position onto the top of the scaffold towers, but relied on weight and friction to hold it in place. The scaffold platform was not secured to the scaffold towers. No scaffold tower was installed to support the mid span of the scaffold platform. 16 The left hand end of the scaffold platform was supported by only one side of the scaffold tower. Day of incident 17 At approximately 7.30am on 4 December 2002, Crouch, Reynolds, Ritchie and Arthur arrived at the premises. Will and Jones of The Defendant had also arrived at the premises to erect a permanent steel platform to the top of the reservoir wall, using the scaffold platform to do so. The reservoir wall was approximately 10 metres high. The scaffold platform was approximately 7.2 metres high. 18 Crouch, Reynolds and Will were on the scaffold platform. Crouch climbed back down to the ground. The permanent steel platform was raised by crane and placed in position at the top of the reservoir wall. Jones and Will then commenced drilling holes to locate the bolts which were to secure the permanent steel platform to secure it to the reservoir wall. 19 Crouch passed a ladder up for use between the scaffold platform and the reservoir wall. 20 Jones and Will then positioned the ladder on the scaffold platform with the top leaning against the reservoir wall, perpendicular to the left-hand steel davit arm of the permanent steel platform. The ladder was located approximately three metres in from the exposed right hand edge of the scaffold platform. The lower end of the ladder leant against the toe board of the scaffold platform. Jones and Will began taking turns drilling holes into the concrete reservoir wall for the placement of bolts using the ladder. 21 Jones was standing on the ladder using the vibrating percussion drill to make holes in the reservoir wall when he noticed movement in the scaffold platform. He scrambled up the ladder and grabbed the left davit arm of the permanent steel platform. Simultaneously, the scaffold platform slid towards the outer edge of the scaffold towers and tilted outwards from the reservoir. The force caused the scaffold platform to rotate, detaching it from the supporting scaffold towers. 22 Reynolds' immediate reaction was to grab the handrail of the scaffold platform as it fell. In doing so, the handrail sprung back towards him as it became detached from the platform. This caused Reynolds to be knocked unconscious as he fell approximately 7.2m to the ground. Reynolds landed at the base of the embankment surrounding the concrete reservoir. 23 Will fell approximately 6.2m to the ground onto the top of the embankment surrounding the concrete reservoir. He immediately looked up to see the 540kg scaffold platform falling towards his legs. Will's simultaneous reaction was to grab his knees and roll away from the platform. The 540kg scaffold platform struck the ground, arcing upwards. The scaffold platform then fell back towards the ground, crushing Will between the platform and the embankment surrounding the reservoir. 24 Will tried to lift the scaffold platform of himself as both shoulder blades were touching his chin. Will then yelled out 3 times, 'Get it off me!'. With the weight of the platform on top of him, Will could no longer breathe. Crouch, who had immediately arrived at the scene of the accident, arranged to lift the platform off Will by crane. 25 Reynolds received multiple injuries including fractures to his Transverse Process Bone, L1 to L4 to the right side of his back, a hip injury, lacerations to his left elbow, right shoulder and back of head, swelling of muscle tissue to left thigh and swelling to both knees. 26 Will received multiple injures including a fractured pelvis, multiple fractures to both shoulder blades (bilateral scapula fracture), a compression fracture to the 4th thoracic vertebra, a bilateral lung contusion and rhabdomyolysis. Will suffered internal bleeding for four days. 27 Jones did not fall as he grabbed the left davit arm of the permanent steel platform and pulled himself on to it. Engineers' report 28 An engineering report by Michael Cheng for the WorkCover Authority dated 10 February 2004 noted the following: 28.1 There were no design drawings or calculations and no rated capacity provided for the scaffold platform. 28.2 This unusual modular scaffolding work platform was not designed, tested and certified as compliant with loading requirements of Australian Standard 1576.3 1995 Scaffolding Part 3 Prefabricated and Tube and Coupler Scaffolding. It did not have a duty classification or design registration with WorkCover. 28.3 The platform simply sat on the towers. There was no positive connection to prevent sliding or uplift of the platform. 28.4 The dimensions and support points for the platform resulted in the potential for the live loads (persons and materials) on the platform to be positioned such that the centre of gravity could move beyond the tipping line, resulting in uplift at the inner connection points. Without secured inner connection points, the platform would rotate about the outer support points and overturn if such a loading condition occurred. 29 Mr Cheng concluded that, without secured connection to the supporting towers, the work platform overturned about the tipping line owing to the distribution of live loads (persons and materials) at such positions which eventually caused its centre of gravity to shift beyond the tipping line. 30 An engineer's report prepared by Frank Spianaze & Associates for Mamfe dated 10 December 2002 (post the incident) identified the need for a third scaffold tower to support the mid span of the scaffold platform. The report also prescribed that the scaffold platforms have bearing onto both sides of the supporting scaffolding shore frames to either end. 31 An engineer's report prepared by Trevor A Jones & Associates for Mamfe dated 10 December 2002 (post the incident) prescribed that a hold down clamp be used to secure the scaffold platform to the supporting scaffolding short frames. Investigation 32 Senior Inspector Michael Cameron attended upon the site on 4 December 2002 and undertook an inspection of the accident site. Senior Inspector Cameron reduced his observations to writing in the form of a "factual inspection". 33 On 5 December 2002 Inspector Cameron requested engineering assistance. In response, Michael Chang attended the scene and together with Colin Crouch, Kevin Plummer (Regional Contract Manager for Department of Public Works and Services) and Tom Blow (Project Manager for Department of Public Works and Services) witnessed a re-enactment of placing the work platform onto the scaffold towers arranged by Mr Colin Crouch. 34 Inspector Dianne Dunlop issued prohibition notice number 7-12896 on 4 December 2002 in relation to the immediate risk posed to safety by the scaffolding. The prohibition notice required Mamfe to provide and maintain safe and suitable scaffolding, with the damage to the scaffolding to be assessed and certified by a practising engineer before the scaffolding was returned to service. Scaffolding Further description 35 A Weigh Bridge Certificate dated 20 December 2004 confirmed that the net mass of the scaffold platform was 540kgs. 36 On 4 December 2002 the scaffold platform was supported by a single side of one of the supporting scaffold towers. 37 There was inadequate means of securing the scaffold platform to the scaffold towers. 38 The width of the scaffold platform was 900mm. This would allow a potential sideward movement of the steel platform of 320mm between the vertical lugs of the scaffolding shore frames. 39 The right-hand side scaffold tower leant outward from the reservoir wall at approximately 5 from the vertical. Design registration and classification 40 Pursuant to Clauses 94, 107 and 136 of the Occupational Health and Safety Regulations 2001 the Defendant was required to ensure that the scaffolding had a current design registration number. 41 Additionally, those clauses required that the scaffolding comply with Australian Standard 1576.3:1995 (pre-fabricated scaffolding). 42 Section 4 of AS1576.3:1995 required that the scaffolding be tested and set out the testing methodology at Schedule E. 43 The scaffolding design was not, at any time, verified by a competent person as required under Clause 107 of the Regulations. 44 Whilst the unusual, uniquely designed scaffolding was designed by Mr Colin Crouch as an employee of Mamfe Pty Limited, the Defendant failed to take adequate steps to verify that the scaffolding complied with legislative requirements. Australian Standard 4576:1995 Guidelines for Scaffolding 45 By operation of the Technical Guidance Code of Practice 2001, AS4576:1995 was incorporated without modification into the Technical Guidance Code of Practice. 46 In addition to the registrations failings referred to above, the scaffolding did not comply with provisions of AS4576. The compliance failures of the scaffolding concerned stability (Section 8.4), working platform (Section 8.7) and edge protection (Section 8.8). Section 8.4 Stability 47 Section 8.4 of Australian Standard 4576 relevantly provides: A scaffold must have the stability to prevent it from overturning. Stability may be achieved by tying the scaffold to a supporting structure….. Section 8.7 working platform 48 The scaffolding was not at a height appropriate to perform work on installing the permanent steel platform to the reservoir wall. As a result of this, Jones and Will positioned a ladder on the platform as set out in paragraph 20 herein. This contravened section 8.7 of Australian Standard 4576:1995 as depicted in figure 8.7 'Unsafe Working Platforms'. 49 Use of the ladder on the platform was also contrary to the Defendant's Occupational Health and Safety Plan which relevantly stated: Ladders will NOT be used where scaffold or other suitable working platforms are required. The use of the ladder meant that any worker using the ladder was working above the platform railing without fall protection. Section 8.8 Edge protection 50 Section 8.8 of Australian Standard 4576 relevantly provides: Edge protection should be provided to the open sides and ends of any platform from which a person or object could fall 2 metres or more. 51 As set out in paragraph 12 herein there were no handrails at the end of the platform. The lack of edge protection was also contrary to the Defendant's occupational health and safety plan. Safe work method statement 52 The Defendant failed to undertake and document a safe work method statement as required by clause 229 of the Regulation. 53 The Defendant prepared a work method statement in relation to the supply and installation of the metal work roof but did not address tasks associated with working at heights for the purpose of installing a permanent steel platform for the reservoir wall. Amended Application for Order 54 It is alleged that on 4 December 2002, the Defendant, Coastal Fabrications Pty Limited (ACN 006 212 808), with its registered office located at 'William Nicholls' 109, Dalley Street, Mullumbimby, in the State of New South Wales, an employer, contravened section 8(1) of the Occupational Health and Safety Act 2000 at the Waterview Seelands Eatonsville Water Supply Site located at Hampton Road, South Grafton in the State of New South Wales ( premises ), in that it failed to ensure the health, safety and welfare at work of all its employees, in particular Bruce Will and Darren Jones. Particulars of the Defendant's contravention are as follows: 54.1 That the Defendant failed to adequately undertake and document a safe work method statement for tasks associated with working at heights for the purpose of installing a permanent steel platform for the reservoir wall; 54.2 That the Defendant failed to take adequate steps to verify the safety of the scaffolding utilised by its employees at the premises in that it: (a) The Defendant failed to ensure the usual curved scaffolding met design registration requirements; (b) The Defendant failed to ensure the scaffold platform was maintained at an appropriate height relevant to the height at which work was being undertaken; (c) The Defendant failed to ensure adequate fencing of the exposed ends of the scaffold platform. As a result of the said failures, Bruce Will and Darren Jones were exposed to risk of serious injury. 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