Industrial Court of New South Wales CITATION: Inspector May v HG Nielsen & Co Pty Ltd & Anor [2006] NSWIRComm 403 PROSECUTOR Inspector Phillip May PARTIES: FIRST DEFENDANT HG Nielsen & Co Pty Ltd SECOND DEFENDANT Thomas Nielsen FILE NUMBER(S): IRC 726 and 727 of 2006 CORAM: Staff J CATCHWORDS: Occupational Health & Safety Act 2000 - Prosecutions under s 8(1) and s 26(1) of the Occupational Health & Safety Act 2000 - Building industry - Residential premises - Fall from ladder - Defendant small company - General and specific deterrence - Plea of guilty - First offence - Penalty imposed Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health & Safety Act 2000 Occupational Health and Safety Regulation 2001 Fernandes Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Stephen Jones) (2002) 124 IR 148 Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156 Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 R v Thomson; R v Houlton (2000) 49 NSWLR 383 CASES CITED: WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd and Anor (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (2000) 101 IR 261 WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363 WorkCover Authority of New South Wales v Hitchcock (2005) 139 IR 439 HEARING DATES: 05/12/2006 DATE OF JUDGMENT: 12/18/2006 PROSECUTOR Mr D O'Neil of counsel Solicitor: Mr P Thompson DLA Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT Mr B Hodgkinson SC Solicitor: Mr A Salmon Fisher Cartwright Berriman JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J 18 December 2006 Matter No IRC 726 of 2006 INSPECTOR PHILLIP MAY v HG NIELSEN & CO PTY LIMITED Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 Matter No IRC 727 of 2006 INSPECTOR PHILLIP MAY v THOMAS NIELSEN Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 by operation of s 26(1) of the Act JUDGMENT [2006] NSWIRComm 403 1 These matters involved two prosecutions for offences under the Occupational Health & Safety Act 2000 ("the Act") involving a ladder slipping whilst an employee was descending from the roof of the second storey of a house to the first floor. 2 HG Nielsen & Co Pty Ltd ("the first defendant") is a roof contracting company. It was prosecuted for a breach of s 8(1) of the Act. Thomas Leo Nielsen ("the second defendant") is a director of the first defendant and was prosecuted under s 26(1) of the Act because of the offence committed by the first defendant. 3 The incident that gave rise to the prosecutions occurred at approximately 8.45 am on 27 April 2004 at 3 Quarry Road, Tempe, New South Wales ("the site"). Located at this site were residential premises at which the first defendant had been engaged as a sub-contractor by Andrew Steward t/as ASB Constructions to perform certain roofing work. Mr Hugh Crawford, an employee of the first defendant, was attempting to climb down a ladder from the second storey of the house to the first floor, when the ladder slipped and fell causing Mr Crawford to fall approximately 3.4 metres onto the clip-lock roof below. The ladder was not tied off or footed and there was no other person holding the ladder as Mr Crawford was attempting to descend. 4 As a result of the incident, Mr Crawford sustained serious injuries including fractures to his spine, a fracture to his right collarbone, three broken ribs and a cut to his head, which required 50 stitches. 5 The first defendant was prosecuted under s 8(1) for an alleged failure to ensure the safety of its employees, including Mr Crawford and Mr Nathan Bullock. The failures alleged were: 1. the defendant failed to provide a safe means of movement between the different levels at the place of work, namely the roof of the residence at the site; and 2. the defendant failed to provide a safe work method statement for the work to be performed at the site; and 3. the defendant failed to conduct any or any adequate risk assessment of the work to be performed at the site; and 4. the defendant failed to provide and maintain systems of work for its employees that were safe and without risks to health in that: a. it failed to ensure that any and all ladders used at the site were properly tied off and/or footed whilst being used; b. it failed to ensure that risk of falling from a height were controlled by the provision and maintenance of any of any adequate fall protection at the site. 5. the defendant failed to provide such information, instruction, training (including a site specific induction) and supervision to its employees as was necessary to ensure the employees health and safety at work. 6 Further particulars of the offence were provided. For convenience, they are incorporated in the agreed statement of facts. 7 The failures particularised in the charge in respect of the second defendant were the same as those for the first defendant. 8 Both defendants pleaded guilty to the charge made against them. 9 Mr D O'Neil of counsel, who appeared for the prosecutor, relied on the following evidence in the sentencing proceedings: (i) an agreed statement of facts; (ii) factual inspection report by Inspector D Macready dated 4 January 2006; (iii) three colour photographs; (iv) statements regarding prior convictions. Neither defendant has any prior convictions; (v) WorkCover Code of Practice 2004 - Safe Work on Roofs dated 10 December 2004. 10 The agreed statement of facts in respect of both defendants provided: … 3 The Prosecutor conducted investigations into the circumstances surrounding an incident which occurred on 27 April 2004 to Hugh Crawford (injured worker), then aged 53 years, at 3 Quarry Street, Tempe, New South Wales (site). 4 At all material times H G Nielsen: 4.1 Was a duly incorporated company with its registered office located at Suite 36, 401 Pacific Highway, Artarmon, NSW; 4.2 Employed the injured worker as a roof tiler tradesman commencing approximately 1981; 4.3 Entered into a contract with Andrew Steward (Steward) trading as ASB Constructions (ASB) of 6A Blamey Street, Allambie, NSW to perform slate roofing works on the residential building at the site. 5 At all material times ASB: 5.1 Was the principal contractor for the site; 5.2 Employed Patrick Hoelscher as an apprentice carpenter on the day of the incident; 5.3 Had an undertaking at the site to perform construction works associated with the renovation of the residential dwelling at the site. In particular the construction of a second storey to the dwelling. 6 The roofing works performed by H G Nielsen at this site consisted of repairs to the existing slate roof and provision of a new slate roof to the extension to the dwelling at the site. HG Nielsen was not contracted to perform repairs to the existing almost flat clip lock roof on the first storey or the provision of the newly installed flat ribbed profile roof on the second storey. 7 At all material times Nielsen was a director of H G Nielsen. 8 At all material times the site constituted H G Nielsen's and ASB's place of work. Background 9 On Saturday 24 April 2004 Nielsen and the injured worker attended the site and performed some work on the flat roof at the premises. Nielsen decided that work should cease early on 24 April 2004 due to concerns he had relating to the safety of working on some pitched sections of the roof whilst there were no safety rails installed. 10 Nielsen was to arrange for the installation of safety rails on Tuesday, 27 April 2004 as Monday 26 April 2004 was the Anzac day holiday but failed to do so. 11 Two sub contractors to ASB, Clayton Marshall (Marshall) and Graeme Perret (sic) (Perret), (sic) were present at the site performing work for ASB on Tuesday 27 April 2004. Perret (sic) was nominated by ASB as its (sic) the site supervisor. 12 On Tuesday, 27 April 2004 another employee of H G Nielsen, Nathan Bullock (Bullock), a 16 year old apprentice, was present at the site to assist the injured worker. 13 Bullock was working on a section of roof at the front of the premises on Tuesday 27 April 2004. The injured worker had forbidden Bullock from accessing the roof at the rear of the building. 14 The site consisted of a residential building undergoing renovation with a new second storey addition being added. There was a pitched slate roof to the front of the building rising to the second storey addition which also had a partially completed pitched slate, metal and timber roof at the time of the incident. To the rear of the second storey addition was another section of the premises. The roof of this section was approximately 3.4 metres lower than the flat roof of the second storey addition and had an almost flat metal clip-lock roof. This roof was approximately 4.4 metres above ground level. 15 At all material times there was no scaffolding or safety rails provided at the site. 16 The employees of H G Nielsen were not wearing any safety harnesses whilst working at the premises and there were no ropes provided for use with safety harnesses. 17 There was a rope tied to the roof at the premises which workers used as an aid to assist in walking on the pitched section of the roof at the front of the residential building at the site. Incident 18 On Tuesday 27 April 2004 at approximately 8.45am the injured worker was on the existing flat ribbed profile roof of the second storey of the building at the premises and decided to access the clip lock roof of the first storey on his way to getting some more roof slates. 19 The injured worker decided to use a ladder which was already in place between the first and second storeys as a means of access to the roof of the first storey. 20 The ladder had been placed on the clip lock roof of the rear section of the premises and was leaning against the guttering of the second storey. The ladder could extend to approximately 4.5m and was extended approximately one metre above the edge of the second storey roof before the injured person attempted to descend. 21 The ladder was not tied off or footed and there was no other person holding the ladder as the injured worker was attempting to descend the ladder. 22 As the injured worker was in the process of descending the ladder it slipped and fell causing the injured worker to fall approximately 3.4m from the existing flat ribbed profile roof onto the clip lock roof below. 23 The injured worker was transferred to Royal Prince Alfred Hospital for treatment and remained in hospital for approximately four days. 24 As a result of the incident the injured worker sustained serious injuries including fractures to his spine, a fracture to his right collarbone, three broken ribs and a cut to the head which required 50 stitches. Investigation 25 At approximately 10.41am on Tuesday 27 April 2004 Inspector Denis Macready attended the site in response to a verbal notification of the incident. 26 On arrival at the site Inspector Macready was met by Sergeant Brett Godfrey and Constable Rowena Ryder of Newtown Police, Nielsen, Steward, Perret (sic) and Bullock. 27 During the inspection Inspector Denis Macready observed, inter alia, the following: 27.1 A residential dwelling with a chain wire fence that had a sign mounted on it. The sign was white with green letter in that read "Development Proposal". 27.2 The single storey dwelling consisted of light green painted brick walls, reddish brown and white framed windows with lattice work. 27.3 The roof was pitched and consisted of grey slate tiles. There was a central arched entrance with a small pitched roof and a white gable that faced Quarry Street. The number "3" was attached to the right side of the arch. Either side of the arched entrance was a verandah with a reddish brown metal bull nose roof. 27.4 On the left, lower, front side of the slate roof lay a roll of silver and blue material. 27.5 A blue cloth lay on the right hand side of the bull nose roof. 27.6 From the top of the house a rope was observed running over the top, centre of the slate roof, down to the top of the left side of the bull nose roof. 27.7 At the rear of the building there was a partially constructed second storey which consisted of a pitched roof with gables at the Northern and Southern ends. The pitched roof was not completed and insulation and battens were visible. 27.8 At the rear of the building was a flat pitched skillion roof that ran off the back edge of the new extension and appeared to be sheeted with clip lock metal roofing material. The walls were clad with grey, Hardie Board type planks. 27.9 The back half of the single storey dwelling had been previously extended out to the back and consisted of brick walls and a silver/grey clip lock style flat roof. This roof was approximately 4.4m high at the rear. 27.10 From the room on the second storey under construction could be seen a patch of red substance approximately 250mm x 450mm on top of the clip lock roof, approximately 1.11m from the south wall and 1.20m from the external wall and was approximately 3.4m below the roof of the second storey. Steward and Nielsen identified this area as the place where the injured worker was found. 27.11 Adjacent and to the left of the red substance was a timber wedge that measured approximately 100mm x 40mm. 27.12 Adjacent and further to the left of the red substance and timber wedge was a patch of nails covering a diameter of approximately 800mm. 27.13 Approximately 2.4m from the external wall, west of the red substance was a light blue T-shirt with a dark blue patch. 27.14 To the right of where the injured worker was found was a green poly tarp placed in a pile that measured approximately 3.0m x 2.5m. 27.15 Approximately 1.2m north of the northern wall was an aluminium extension ladder with white writing and a blue background with the words "Bailey, leading the world on ladders". The ladder was laying in an east-west direction and was approximately 3.5m to 4.0m long. 27.16 West of the green tarp was a was of the small pile of slate tiles, measuring approximately 400mm x 500mm that was in line with the north was (sic) of extension and approximately 3m west of the back wall. 27.17 Behind the tiles were three (3) pieces of timber, 2 x 500 x 50mm (approx) and 1 x 300 by 50mm (approx). Behind the timber was a stack of orange and black ridge capping tiles. 27.18 To the left of the ridge capping was a pile of slate 500mm x 500mm x 60mm high. 27.19 At the western end of the ladder in the northern corner of the first storey clip lock roof lay another stack of slate tiles. 27.20 Another green poly tarp partly covered the west end of the ladder and part of the slate tiles. 27.21 To the north of the ladder on the northern edge of the first storey roof was a number of edge capping tiles, four (4) decorating ridge cap tiles and a large centre capping tile, several pieces of timber trims, a length of guttering and several short pieces of Hardie Board type material. 27.22 The metal clip lock roof on the first storey where the injured worker was found measured approximately 7.5m wide x 5.2m deep. Following the incident 28 Following the incident H G Nielsen participated in and successfully completed audits 1 and 2 of WorkCover's premium discount scheme and qualified for a 15% workers compensation premium discount. 29 H G Nielsen, Nielsen and Steward trading as ASB fully cooperated with WorkCover during the investigation. 11 Mr B Hodgkinson SC, who appeared for the defendants, tendered an affidavit of Thomas Leo Nielsen, who was not required for cross-examination. Mr Nielsen deposed that he commenced employment with the first defendant on 19 December 1984, becoming a director of the first defendant on 27 March 1996. He stated his primary duties are to draft quotes for potential clients, liaise with clients, supervise on site and participate in the work performed on jobs. When supervising on site, Mr Nielsen's duties involved the inspection of roof areas and ladder access to ensure the areas are safe. He also completes a site inspection both by himself and in conjunction with employees. Discussions are held with employees with respect to how to perform the job in a safe manner and ensure employees sign off on safe work method statements. 12 Mr Nielsen stated that the first defendant had been in operation since 1971 when his father formed the company. It is a family run company and has always had few employees. At the present time, the first defendant employs six employees including himself and his wife as directors. Mr Nielsen set out his training and qualifications. This included completing a Safety Rail Industry Installation Induction Course in 1996 and a Safety Testing and Tagging of Electrical Equipment course in 2003. 13 Mr Nielsen stated that the first defendant had employed Mr Crawford since 21 May 1981. On being informed of the accident, he drove to the site arriving at approximately 9.20 am. Mr Nielsen's father drove his wife to Narellan to pick up Mrs Crawford and her daughter and take them to Royal Prince Alfred Hospital. He and his wife visited Mr Crawford whilst he was in hospital and upon his release, the defendants offered support to the affected employees. He engaged a company to develop a return to work plan for Mr Crawford who returned to his former duties on a part time basis on 7 September 2004. Mr Crawford returned to work on a full time basis on 4 October 2004. 14 Mr Nielsen stated that upon purchasing the first defendant, he identified the need to build upon and formalise its occupational health and safety systems. On 21 April 2001, the defendants purchased a comprehensive written occupational health and safety system from Mel Crook & Associates Pty Ltd, a specialist provider of occupational health and safety for a variety of industries. The occupational health and safety system comprised eight manuals and was a generic system for employers operating in the construction industry. Mr Nielsen set out in his affidavit the extensive material contained in the manual, annexing a copy of the index. The safety system cost the defendants $4,290. The system was reviewed by the Sydney Water Corporation in May 2001 and was accredited. Mr Nielsen stated that the first defendant provided practical on the job training, including the use of protective equipment. However, such processes were not formally documented prior to the incident. 15 Although employees of the defendant undertook a five-hour occupational health and safety construction induction course in 2003, which included a component on working at heights, Mr Nielsen acknowledged that there was no work method statement in existence prior to the accident. 16 Prior to the incident, the first defendant had in place personal injury report forms, hazard reporting forms, and a practice to meet with employees to meet at a worksite and discuss a particular job. Toolbox meetings were conducted daily at the workplace. These meetings were not formally documented. 17 Mr Nielsen stated that after the incident, the first defendant was issued with three WorkCover Improvement Notices. These were actioned by the first defendant. It also implemented a new safety risk management system modelled on the new safety risk management system of the Master Tilers, Slaters and Shinglers Association of New South Wales, Occupational Health and Safety System Manual. The first defendant has been a member of this Association since 1975. Mr Nielson's father is an executive member of the Association. 18 The risk management system implemented by the first defendant since the incident included: a. a Safe Work Method Statement with respect to working at heights; b. a Personal Protective Equipment Policy, Register and Checklist; c. a Training Policy, consisting of: i. a site specific induction; ii. hazard report form; iii. tool box talk; iv. training register v. competency assessment register; vi. personal protective equipment checklist and register; and vii. training attendance register. 19 In addition, all employees of the first defendant were retrained, including with the safe use of ladders, safety harness use, use of nail guns, hazardous substances, use of brick saw and the use of power saws. All employees were issued with personal protective equipment and required to sign the receipt of this equipment. A training needs analysis for each employee was developed to ensure that any training needs are identified. A daily written action list and site inspection and induction register for every job was introduced. Regular and formal safety meetings and toolbox talks are also conducted for employees. 20 Since the incident, the first defendant requires all employees to wear harnesses, or use safety rails and scaffolding on all roofs, regardless of height or pitch. In December 2005, all employees successfully completed the Safe Master Height Safety Solutions Induction Course. On 13 March 2006, the first defendant's employees completed their Occupational Health and Safety (WorkCover) General for Construction Work in New South Wales. 21 In 2004, the first defendant participated in the Premium Discount Scheme offered by WorkCover and successfully passed Audit 1 on 16 September 2004 and Audit 2 on 10 May 2005. Although the WorkCover Premium Discount Scheme has since been withdrawn, the first defendant is still committed to continuing the remaining audits to ensure that it is constantly reviewing its practices and keeping in line with legislative occupational health and safety requirements. 22 Mr Nielsen stated that both he and the first defendant's management are genuinely sorry that the incident occurred and intend to continuously strive to improve occupational health and safety. He stated that the first defendant had fully co-operated with WorkCover and entered a plea at the first available opportunity. 23 Mr Nielson stated that the first defendant has donated an amount in excess of $6,000 to a range of charities including the Variety Club Special Children's Christmas Party; Sutherland Bowling and Recreation Club; Rural Fire Service; Westmead Children's Hospital; Lioness Club of Sutherland; North Shore Heart Research Institute and Australian Federal Police Sponsorship. Consideration 24 The defendants' failures to ensure that workers were not exposed to risks to their health and safety causes these offences to fall within the serious category of cases that come before this Court involving falls from height. In this matter, the roof of the first level of the premises was 4.4 metres above the ground with the roof of the second storey 3.4 metres above the first floor. Mr Crawford fell approximately 3.4 metres from the second level to the first level in circumstances where a ladder was placed on the roof of the rear section of the premises and was leaning against the guttering of the second storey. The ladder was not tied off or footed and there was no other person holding the ladder as Mr Crawford was attempting to descend the ladder, which slipped and fell. There was no scaffolding or safety rails at the site. 25 Needless to say, in such circumstances, the risk was clearly obvious. A system of work that involved the use of a ladder that was not properly secured or footed, for access to and from the first storey of the premises to the second storey, being a distance of 3.4 metres, was demonstrably unsafe. 26 The obligation on the first defendant under s 8(1) of the Act is to ensure that employees are not exposed to risks to their health and safety. The risk in this case was the risk of a fall from height at all times in regard to accessing the house on the day of the accident. 27 Whilst the first defendant did recognise the risk of fall in respect of working on the roof on 24 April 2004 and determined that work should cease due to the risk whilst there were no safety bars installed. The installation of safety bars or rails was to occur on 27 April 2004. This did not occur before the accident. It cannot therefore be said that the first defendant completely ignored the risk of working on the roof, which is a consideration in the first defendant's favour. However, the arrangement to provide the safety bars seems to have occurred without proper regard for what was required in order to ensure that Mr Crawford was not exposed to a risk on 27 April 2004. There was no safe work method statement prepared by the first defendant. There was no risk assessment prepared and there was a failure to ensure that the ladder was properly tied off and footed, which led to a failure to ensure that the risk of falling from height was controlled. There was also a failure in relation to the provision of information, instruction and training, including site-specific induction and supervision. For the first defendant to continue to allow employees to work on a roof without a safety harness, rails or scaffolding where a fall was clearly foreseeable, represents an abrogation of its obligation to ensure the safety of its employees. 28 I acknowledge that Mr Crawford, who had been employed with the first defendant since 21 May 1981, was an experienced worker and had undertaken this work on numerous occasions. It may be that an approach was taken which was not as strict or structured as it should have been, given the level of Mr Crawford's experience. However, the fault with such an approach is that it is well known that every experienced worker can, over time, or from time to time, have a lapse or take on unsafe approach to their work which is why in every instance it is essential, if the employer is going to ensure the health and safety of its employees that steps be undertaken to avoid the risk and detriment to safety. The ladder should have been properly tied and footed. Alternatively, scaffolding or safety rails should have been put in place. In addition, fall protection equipment should have been provided to Mr Crawford. In the absence of these measures, the risk was obvious. Where the risk of injury is obvious and foreseeable and insufficient steps are taken to eliminate the risk or to protect its employees from its impact, it will increase the seriousness of the offence: WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd and Anor (2000) 95 IR 383 at 452; WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (2000) 101 IR 261 at 267. 29 It is an agreed fact that Mr Crawford had forbidden Mr Bullock, an apprentice and inexperienced worker from accessing the roof at the rear of the house. This is evidence that Mr Crawford had foreseen the risk to an inexperienced worker being exposed to a risk of working at height. 30 As a result of the accident, Mr Crawford suffered serious injuries. Although damage or injury does not, of itself, dictate the seriousness of the offence, or the penalty, a breach where there was every prospect of serious consequences, may be assessed on a different basis to a breach unlikely to have such consequences and in such case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337. The injuries suffered by Mr Crawford is a matter I am entitled to take into account under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 ("Sentencing Procedure Act"). 31 Mr O'Neil tendered a copy of the WorkCover Code of Practice - Safe Work on Roofs Part 2 - Residential Buildings. This Code of Practice commenced on 10 December 2004 and revoked the Code of Practice: Safe Work on Roofs, Part 2 - Residential Buildings, 1997 published on 1 March 1997 as an approved industry Code of Practice. 32 It was acknowledged that this Code of Practice came into operation after the accident occurred in this matter. Mr Hodgkinson did not take any issue as to the principles set out in this Code, but observed that the prosecutor was not in a position to say that precise compliance with the various sections of the 2004 Industry Code of Practice was required. Clause 3 of the Code deals with planning and preparation, including the appointment of the principal contractor and the obligations upon sub-contractors to supply a written safe work method statement. Clause 5 addresses safeguards from working at heights and refers to the legislative requirements including cl 56(1)(a) of the Occupational Health and Safety Regulation 2001 ("the Regulation") which provides as follows: 56 Prevention of falls from heights—particular risk control measures (1) An employer must ensure that risks associated with falls from a height are controlled by use of the following measures: (a) provision and maintenance of: (i) a stable and securely fenced work platform (such as scaffolding or other form of portable work platform), or (ii) if compliance with subparagraph (i) is not reasonably practicable—secure perimeter screens, fencing, handrails or other forms of physical barriers that are capable of preventing the fall of a person, or (iii) if compliance with subparagraph (ii) is not reasonably practicable—other forms of physical restraints that are capable of arresting the fall of a person from a height of more than 2 metres, … 33 Clause 4 of the Code deals with access and provides as follows: · access to the work area and to the roof must be safe and without risks to health · access requirements should take into account any tools and equipment the person may be required to carry to and from the roof · if ladders are used for access: the ladder should have non-slip feet and be secured against movement persons should have a safe landing place when stepping off the ladder the ladder should extend at least one metre above the landing place the clearance between metal or wire reinforced ladders and any electrical conductor wires (powerlines) should be at least 3 metres. Otherwise non-conducting ladders should be used, and it must not require the person to climb over the top guardrail. 34 Although, as I have already observed, this Code was not in operation at the time of the accident in order to ensure the safety of employees using ladders, the requirements set out above would have been obvious if a risk assessment had been undertaken. In any event, cl 56 imposed an obligation on the defendants to ensure control measures were in place to avoid the risk of a fall from height. 35 The risk of serious injury, including death, was not only foreseeable but also foreseen. This results in this offence being a serious one. 36 Mr Hodgkinson submitted that ch 8 of the Regulation imposed obligations on contractors referring, in particular, to cl 210 which requires the appointment of a principal contractor where construction work is undertaken and the cost of the work exceeds $250,000, or where high risk construction work is undertaken and the costs of the work does not exceed $250,000. 37 The principal contractor in respect of this site was Andrew Stewart trading as ASB Constructions. Pursuant to cl 210(3), such person is responsible for the construction work at all times until the work is completed. This led Mr Hodgkinson to submit that the principal contractor was the person occupying the pinnacle role in respect of safety and had very serious responsibilities in respect of all work. 38 Senior counsel submitted that in light of the Regulation, it was necessary to weigh the responsibilities of the principal contractor. First, in terms of culpability and second, in terms of parity in respect of the defendants. 39 An employer's responsibilities are dealt with in ch 2 of the Regulation. Relevantly, cl 9 provides as follows: 9 Employer to identify hazards (1) An employer must take reasonable care to identify any foreseeable hazard that may arise from the conduct of the employer's undertaking and that has the potential to harm the health or safety of: (a) any employee of the employer, or (b) any other person legally at the employer's place of work, or both. (2) In particular (and without limiting the generality of subclause (1)), the employer must take reasonable care to identify hazards arising from: … (i) the physical working environment (including the potential for any one or more of the following: … (iv) people slipping, tripping or falling, … 40 In my view, nothing done by the incorporation of ch 8 into the Regulation can in any way lessen the employer's responsibilities. Mr Hodgkinson's submission, as I understand it, is directed to the involvement of other parties and goes very close to what may be described as apportioning a total penalty as between persons said to be responsible for the occurrence of an accident. A not dissimilar submission was considered by Hungerford J in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [48] - [49] where his Honour observed: [48] … I am unaware of any such approach in the sentencing process and, I think, it should be stated as plainly as may be that it is an approach leading to error. To the extent that Mr Phillips relied upon the parity principle in sentencing to support such a submission, I am of the view that that principle does not require a sharing or apportionment of culpability (and hence of sentence) but rather is designed to ensure that there should not be a marked disparity between sentences given to co-offenders for the offence for which they have been respectively found guilty. As Mason J, as his Honour then was, commented in Lowe v The Queen (1984) 154 CLR 606 at 610-611: "Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." [49] Brennan J added in that same case (at 617): "The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case." 41 Although his Honour's observations were made prior to the introduction of the 2001 Regulation, it seems to me that the principle is still applicable and good law. I respectfully adopt his Honour's observations. See also WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182; Fernandes Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Stephen Jones) (2002) 124 IR 148 and WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at [54]. 42 General deterrence is a matter of significance in this case. In WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363, a Full Bench referred with approval to the observations of Walton J, Vice-President in WorkCover Authority of New South Wales v Hitchcock (2005) 139 IR 439 where his Honour said at [28]: [28] … there is one other significant factor going to the question of the objective seriousness which will influence the assessment of penalty in this matter: general deterrence. The principles relating to general deterrence set out in WorkCover Authority (NSW) v Schrader (2002) 112 IR 284 at [69]-[70], referred to recently with approval by the Full Bench in Maddaford v Coleman at [80], emphasise the more severe punishment which attends general deterrence, should it feature in sentencing: The Court in WorkCover Authority v Schrader held at [69]-[70]: The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements. The notion of general deterrence is well understood. However, in my view, and in accordance with what was stated by the Full Court in Capral Aluminium at [72] - [74]), in cases such as this, it should be reiterated that 'one of the main purposes of punishment ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment' (emphasis added): R v Rushby [1977] 1 NSWLR 594 per Street CJ citing R v Radich [1954] NZLR 86 (adopted by this Court in Capral Aluminium ). Further, I would note that it has been described as 'the fundamental duty of this Court' to ensure that any penalty imposed is severe enough to 'compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace': Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 adopted in Capral Aluminium ). See also the Full Bench decisions in [WorkCover (NSW)] WorkCover Authority (NSW) v Burnshaw Constructions Pty Ltd (2002) 121 IR 119. 43 The importance of general deterrence in the present circumstances is demonstrated by a number of factors. Mr Crawford was accessing a ladder, which slipped and fell causing him to fall 3.4 metres. The ladder was not tied or footed, nor was any other person holding the ladder. Mr Crawford was without scaffolding or harnessing equipment. In effect, there was no safety measures in place. 44 This matter once again highlights the dangers of working at a height and the importance of implementing appropriate safety measures for the protection of workers. This issue has been recently discussed in a number of Full Bench decisions of this jurisdiction: Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156; Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350 at [43]; WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd. 45 It is appropriate in this case that I give weight to the need for general deterrence. 46 As for specific deterrence, I note that the defendant continues to operate in the building industry. However, I also note that the defendants have taken appropriate steps to significantly improve its policies and procedures regarding occupational health and safety since April 2004. Furthermore, the first defendant has been operating since 1971 and this is its only offence since that time. I therefore propose to include in the penalty an amount in respect of specific deterrence, but in light of the above factors, it will be small. 47 As to subjective considerations, the defendants entered pleas of guilty at the first directions hearing. In my view, each is entitled to a discount for the utilitarian value of the plea. I propose to discount the penalty by 25 per cent in accordance with the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383. 48 I also take into account that the first defendant is a relatively small operation, although there was no issue as to its capacity to pay any fine. Each defendant has no prior convictions; both co-operated with the WorkCover Authority in the investigation of the accident; the defendants took immediate and appropriate steps to avoid a recurrence of the accident as highlighted in the evidence of Mr Nielsen. The defendants have also improved the policies and practices relating to occupational health and safety. The defendants also assisted in Mr Crawford's rehabilitation and return to work. Both defendants are entitled to a finding of good corporate citizenship. 49 Taking into account the matters considered in this judgment and noting that the maximum penalty for the first defendant is $550,000 and the second defendant $55,000, I consider that the first defendant should be fined an amount of $60,000 and the second defendant, an amount of $6,000. ORDERS 50 The Court makes the following orders: Matter No IRC 726 of 2006 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $60,000 with a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, if agreement cannot be reached, as assessed in accordance with the Court's Rules. Matter No IRC 727 of 2006 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $6,000 with a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, if agreement cannot be reached, as assessed in accordance with the Court's Rules. 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.