Industrial Court of New South Wales CITATION: Inspector Webster v Joyce [2009] NSWIRComm 52 PROSECUTOR WorkCover Authority of New South Wales PARTIES: DEFENDANT Daniel Kristopher Joyce FILE NUMBER(S): IRC 1074 of 2008 CORAM: Marks J CATCHWORDS: OHS prosecution - defendant charged as director of company that contravened same provision of the act - guilty plea - penalty - defendant is now more conscious of OHS obligations - most serious offence - failure of company to ensure protective structures were in place - deterrence - mitigating factors - no prior convictions - expression of contrition and remorse - taken positive steps since incident to ensure compliance with responsibilities under the act - early guilty plea - co-operated with investigations - penalty imposed. LEGISLATION CITED: Occupational Health and Safety Act 2000 s8, s26 HEARING DATES: 31 October 2008, 9 March 2009 DATE OF JUDGMENT: 29 April 2009 PROSECUTOR Mr C Magee of counsel Solicitor Legal Group WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Ms A Wong DEFENDANT Mr R Warren of counsel Solicitor Aubrey Brown Partners Mr J Peach JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Wednesday 29 April 2009 Matter No IRC 1074 of 2008 Inspector David Webster v Daniel Kristopher Joyce Prosecution under s 8(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 52 1 The defendant, Daniel Kristopher Joyce, is charged by the prosecutor, Inspector David Webster of the WorkCover Authority of New South Wales, with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). He is so charged by virtue of s 26(1) of the Act in that a company of which he was relevantly a director, namely Proline Pumping Pty Ltd, had contravened the same provision of the Act. 2 The particulars of the charge against the defendant are as follows: (a) At all material times the defendant was a director of the corporation. (b) The corporation failed to provide and maintain a safe system of work in relation to the process of pumping and placing concrete on to level 2 of building B at a height of approximately 6 metres. (c) The corporation failed to ensure that the systems of work for pumping and placing of concrete were safe and without risks, as the system used involved employees working within close proximity to the leading edge at a height of approximately 6 metres without any adequate fall protection in place. (d) The corporation failed to ensure that any adequate scaffold, handrail or other form of fall protection was provided in front of the leading edge of the formwork deck where there was a risk of falling greater than 1.8 metres. (e) The corporation failed to provide an adequate safe work method statement dealing with the requirement generally to ensure that the task of pumping and placing concrete, and in particular the cleaning of residue from the concrete pumping hose where employees were required to work at heights of more than 1.8 metres. (f) the corporation failed to provide adequate information, instruction, training and supervision to its employees in relation to the process of pumping and placing concrete onto a formwork deck requiring work at a height of approximately 6 metres at the premises, and in particular in relation to ensuring adequate fall protection where employees were required to work at heights greater than 1.8 metres and within close proximity to the leading edge. 3 The defendant pleaded guilty to the charge and this judgment is concerned only with the question of penalty. 4 There was tendered into evidence an agreed statement of facts, which is in the following terms: 1. At all material times, Inspector David Webster of the WorkCover Authority of New South Wales, 300 Elizabeth Street, Sydney in the State of New South Wales was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106 of the said Act to institute proceedings in the within matter. 2. At all material times Daniel Kristopher Joyce ("the defendant") of 104 Casey Drive, Watanobbi, in the State of New South Wales was a director of Proline Pumping Pty Limited [ACN 098 453 055] ("the corporation"), a corporation whose registered office is situated at 20A Robilliard Street, Mays Hill, in the State of New South Wales. 3. At all material times the corporation operated a business supplying concrete pumping equipment, and associated labour in the building and construction industry. 4. At all material times the corporation was an employer. 5. At all material times the defendant was a director of the corporation. Background 6. At all material times the defendant performed work as an operator of a concrete pump on behalf of the corporation. The defendant was the supervisor in relation to works performed by the corporation at the Premises. 7. At all material times the corporation employed Liam Brewster ("Mr Brewster") as a concrete pump linesman. 8. Mr Brewster reported to the defendant. 9. At all material times the corporation supplied labour, plant and equipment for the provision of concrete pumping and associated works in relation to a construction project at 18 Wilfield Avenue, Vaucluse in the State of New South Wales, ("the Premises"). The project involved the construction of a two storey brick building ('building A') at the front of the property and a second two storey brick building ('building B') at the rear of the Premises. 10. The corporation had been contracted to perform work on the Premises by A.G.G Concreting Pty Limited ('AGG'). AGG had been subcontracted by the Principal Contractor, L.E.A.D Group Pty Limited ('LEAD'), to provide various services at the Premises including concrete placing and finishing in relation to the construction of buildings A and B at the premises. The Incident 11. On 10 July 2006, the corporation had been retained by AGG to provide labour and equipment for the purposes of pumping concrete to the second level of building B. 12. At all material times building B had scaffolding erected partly around the outside of the building up to the formwork deck at level 2 of building B. The front section of building B had no scaffold erected and scaffold was absent on the driveway side towards the front of building B. There were no hand rails or other form of fall prevention in place at the leading edge of the form work deck at level 2 of building B in these areas. 13. On 10 July 2006, Mr Brewster was undertaking concrete pumping work on the second level of building B. Mr Brewster's role included assisting with a concrete pumping hose, which was being used to deliver concrete from an agitator truck at the front of the premises to the second level of building B at the rear of the premises. The task required Mr Brewster to work at a height of approximately 6 metres above the ground below. 14. After placing the concrete, Mr Brewster was required to assist with the task of cleaning the remnants of concrete from the pumping hose. 15. This task involved Mr Brewster holding the end of the hose while a cleaning ball was being forced through the hose, under pressure, to clean the remnants of concrete out of the hose. 16. The defendant, was holding the hose approximately 2 metres back from Mr Brewster. Mr Joyce was manipulating the pressure in the hose. 17. Whilst performing this task Mr Brewster was standing within close proximity to the leading edge of the formwork on the second level of building B. Mr Brewster had his back to the leading edge. 18. At this location there was no scaffolding, handrails or any other form of fall protection provided to prevent persons from falling.at the leading edge of the second level of building B. There was no other form of fall protection system such as a safety line system in use. 19. As a result of the pressure in the line, the pumping hose moved suddenly causing Mr Brewster to lose his balance and he fell from the leading edge of building B approximately 6 metres to the ground. 20. Mr Brewster was still holding the hose as he fell from the leading edge and used the hose to slide down part of the way before letting go and falling approximately 4 to 4.5 metres onto broken bricks and other assorted construction materials which were lying on the ground below. 21. Mr Brewster sustained serious injuries including a fractured left thumb, fractured right foot and toes, and a fractured right kneecap, knee ligament and cartilage damage and a puncture wound to the right thigh requiring two stitches. He was transferred to St Vincent's Hospital by ambulance. He underwent a number of surgical procedures, in particular to repair his fractured kneecap. 22. As a result of the injuries, Mr Brewster was off work for more than 6 months. 23. At all material times the defendant was aware of the lack of scaffold, handrails or other forms of prevention provided on level 2 of building B. The System of Work 24. Prior to the incident there was an unsafe system of work at the Premises in relation to the work being performed at heights greater than 1.8 metres from the ground by the corporation's employees. 25. At the time of the incident there was an incomplete scaffold that surrounded part of building B up to the second level. However, at the time of the incident, there was no scaffold, handrails or any other form of fall protection provided in the area where Mr Brewster was working to prevent persons from falling. 26. There was no other form of fall protection system such as a safety line system in use. 27. The corporation failed to have a safe system of work in relation to employees required to work at heights whilst pumping concrete. 28. The corporation failed to ensure that its system of work required scaffold, handrails, or other form of fall protection to be provided where its employees were required to work at heights greater than 1.8 metres, particularly near a leading edge. 29. The corporation did not develop a Safe Work Method Statement for work at the premises, or for the task of cleaning the remnants of concrete from the concrete pumping hose at the premises. 30. The corporation had not carried out any formal (or informal) risk assessment prior to commencing work at the premises. Nor did the corporation seek any documentation for the work it was undertaking from AGG or the principal contractor, LEAD, on premises. 31. The corporation also failed to ensure that the working environment was safe and without risks to health. Information, Instruction, Training and Supervision 32. The defendant failed to provide adequate information, instruction, training and supervision to Mr Brewster in relation to the process of pumping concrete on level 2 of the rear building. In particular, in relation to the process of cleaning the concrete residue out of the line. 33. Mr Brewster was directly supervised by the defendant on the Premises. 34. Mr Brewster had not received site induction training and was not inducted on to the Premises. 35. Mr Brewster was not asked to attend and did not receive instruction by tool box or safety meetings either prior to working at the premises or whilst at the Premises. 36. The training that was provided to Mr Brewster consisted of on the job training from the defendant. 37. The defendant failed to adequately supervise Mr Brewster's work, in particular, in allowing Mr Brewster to work within close proximity to the leading edge of level 2 of building B, whilst undertaking the task of cleaning out the line in circumstances, where there was no fall protection in place. 38. The defendant was aware that there was a lack of fall protection in the area that he and Mr Brewster were working. Yet no steps were taken by the defendant or the corporation to ensure the area they were working in was safe, including the requirement that adequate fall prevention be provided on level 2 of building B. 39. Further, the defendant was aware that Mr Brewster was performing the task of holding the pumping hose whilst it was being cleaned under pressure, while standing within close proximity to the leading edge on level 2 of building B. No steps were taken to require Mr Brewster to either perform the task while attached to an appropriate safety line system or in an area that did not expose him to the risk of falling. Steps taken after the Incident 40. Following the incident the defendant stated that the corporation had taken steps to review its policies in relation to occupational health and safety, however no evidence of this was provided to WorkCover. Prior OHS Convictions 41. The defendant does not have prior convictions under the Occupational Health and Safety legislation. Cooperation with WorkCover 42. The defendant cooperated with the WorkCover investigation. Documents 43. The following supporting documentation is annexed: A) 11 Colour photographs taken by Inspector Ron Spence and Inspector David Webster on 10 July 2006 (11 pages). B) Factual Inspection report of Inspector David Webster dated 11 July 2006 (2 pages). C) Proline Work Method Statement - incomplete and undated (2 pages). D) Workcover prior convictions certificate (1 page). 5 An affidavit of the defendant also became evidence in the proceedings. 6 The defendant has worked since the age of 16 as an apprentice plumber and a bricklayer. He commenced working as a concreting labourer in 1997 and began trading on his own account using the company Proline Pumping Pty Ltd for this purpose from November 2001 until 10 July 2006. In this time, neither he nor any of the employees of the business had ever suffered a workplace accident. 7 The defendant conceded that apart from checking the experience of employees and ensuring that they were inducted onto a work site, he did not use work methods statements or any other similar procedures for instruction and training, apart from on the job training, prior to the incident. He described his reaction to the incident, the concern that he had for Mr Brewster and the care taken for Mr Brewster after the accident all of which led to a loss of enthusiasm for running the business, which he sold in November 2006. At that stage, no proceedings had been instituted by the prosecutor. 8 In March 2007, the defendant commenced a new business in the same industry. He says that he is now much more conscious of his occupational health and safety obligations and the requirements imposed on his business and annexed to his affidavit a work methods statement. That statement was said by the prosecutor to be inadequate in a number of respects and the defendant has undertaken to remedy those defects. 9 Since the incident, the defendant gave evidence that on at least two occasions he has refused to undertake jobs where there were insufficient or no scaffolding or guardrails. 10 The commencement point for the assessment of penalty is a consideration of the objective seriousness of the offence. I regard the offence as a most serious one. Requiring work to be carried out at a height of about six metres without the erection of scaffolding or guardrails is inherently dangerous. Whether or not the company had such general control of the site that it could erect scaffolding or guardrails itself is not, in my opinion, relevant. What is significant is the failure of the company to ensure that these protective structures were in place. 11 The company, Proline Pumping Pty Ltd, pleaded guilty to the offence (see IRC 1073 of 2008). Accordingly, there can be no doubt that the company of which the defendant was a director was guilty of the offence, and the defendant did not contend otherwise. 12 In assessing penalty, I shall also have regard to the deterrent effect both in a general sense within the building industry and, more particularly, on this defendant as he continues to operate within the industry, albeit utilising a company structure. 13 There are a number of mitigating factors that should be taken into account when assessing penalty. Neither the defendant nor the company, Proline Pumping Pty Ltd, has any prior conviction for a breach of the Act or associated legislation. Furthermore, the defendant expressed contrition and remorse for what occurred and has taken positive steps since the incident to ensure compliance with his responsibilities under the Act. 14 The defendant entered a plea of guilty at an early stage of the proceedings and is entitled to consideration accordingly. He co-operated fully with the WorkCover Authority of New South Wales throughout its investigations. 15 The prosecutor seeks a moiety of any penalty and costs. Such orders were not opposed by the defendant. 16 The maximum penalty is $55,000. Having regard to the seriousness of the offence and the need to take into account the deterrent effect of any penalty, but having regard also to the consideration which is appropriate by reason of the mitigating factors to which I have referred, I would assess an appropriate penalty as being the sum of $18,000. Orders 17 I make the following orders: 1) The defendant is found guilty of the offence charged and convicted accordingly. 2) The defendant is to pay a fine of $18,000, with a moiety to the prosecutor. 3) The defendant is to pay the costs of the prosecution in an amount assessed by the Court in default of agreement. 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