Industrial Court of New South Wales CITATION: Inspector Gelonese v Marsters t-a Western City Construction [2010] NSWIRComm 11 PARTIES: Inspector Bruno Gelonese of WorkCover Authority of New South Wales (Prosecutor) Ariata Marsters (Defendant) FILE NUMBER(S): IRC 176 of 2009 CORAM: Marks J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(1) of the Occupational Health and Safety Act 2000 - early guilty plea - appropriate penalty - objective seriousness - inadequate safety procedures - serious breach - injured worker - general deterrence - remorse and contrition - no prior convictions - penalties imposed LEGISLATION CITED: Occupational Health and Safety Act 2000 - s 8(1) HEARING DATES: 14 December 2009 DATE OF JUDGMENT: 11 February 2010 Mr M Scott of counsel (Prosecutor) Solicitor: LEGAL REPRESENTATIVES: Legal Group, WorkCover Authority of NSW Ms A Marsters in person (Defendant) JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Thursday 11 February 2010 Matter No IRC 176 of 2009 Inspector Bruno Gelonese v Ariata Marsters trading as Western City Construction Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT ON PENALTY [2010] NSWIRComm 11 1 The defendant, Ariata Marsters, has been charged by the prosecutor, Inspector Bruno Gelonese 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"). She has pleaded guilty to the charge and this judgment is concerned only with the question of penalty. 2 An agreed statement of facts was tendered into evidence, which is in the following terms: 1. At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter. 2. At all material times, Ariata Marsters, trading as Western City Construction (ABN 77 389 346 467) ("the Defendant") was a sole trader whose registered office is situated at 138 Glamis Street, Kingsgrove in the State of New South Wales. 3. At all material times Hyecorp was the principal contractor at premises located at 110 Victoria Avenue, Chatswood in the State of New South Wales, also known as 106/110 Victoria Road and 15 Kooringa Road, Chatswood and/or 106 – 110 Victoria Road and 15 Kooringa Road, Chatswood in the state of New South Wales ("the premises") and was an employer. 4. At all material times Vigen Ghevondian ("Mr Ghevondian") of 25 Nowill Street, Rydalmere in the State of New South Wales was a director and the general manager of Hyecorp. 5. Hyecorp was the principal contractor constructing approximately twenty residential units at the premises. Hyecorp subcontracted Ariata Marsters, trading as Western City Construction to undertake the steel-fixing at the premises. 6. At all material times Ariata Marsters, trading as Western City Construction ("Ms Marsters") undertook the business of steel-fixing. Ms Marsters controlled the business and was responsible for occupational health and safety. 7. Whilst Ms Marsters was not experienced in the technical aspects of steel-fixing operations, she relied upon her husband, Turoto Arai ("Mr Aria"), as her first hand supervisor, being a person who was experienced in the business of steel-fixing. Mr Arai's role was to attend sites to ensure that everything was safe before the supervisor went onto the premises. 8. At the time of the incident, Ms Marsters employed the injured person, Tuainekore Taripo ("Mr Taripo") as a steel-fixer from October 2006. Mr Taripo was 37 years old at the time of the incident. Mr Taripo had previous experience as a steel-fixer, however he did not have any formal qualifications in this field and was not provided with training by his employer. 9. At the time of the incident, Ms Marsters employed Taringa Teao ("Mr Teao"). Mr Teao was the supervisor on the day of the incident with regard to the steel-fixing operation. Mr Teao was an experienced steel-fixer and had worked with Mr Arai previously. 10. At all material times the Mr Ghevondian was the site manager and had direct control of the premises on behalf of Hyecorp. THE INCIDENT 11. On 15 February 2007, Mr Taripo arrived at the premises between 1:30pm and 2:00pm with other employees of Ms Marsters. Mr Ghevondian was at the premises at the time they arrived. 12. The building under construction at the premises consisted of two storeys. Level 2 was the top level of the building, with the first floor, ground floor and basement beneath this level. 13. Mr Taripo and other employees of Ms Marsters proceeded to take steel up to the top level of the building. 14. The top floor consisted of a concrete slab with some brick walls partially completed, full and empty brick pallets, and bricklayers trestles adjacent to some of the partially completed walls. There was a penetration in the concrete slab measuring approximately 1100 x 730 mm which was to be used as a mechanical ventilation shaft. The shaft extended down to the basement level. A plywood board measuring 1270mm x 905mm x 16mm covered the opening. The plywood was not secured over the opening. 15. Mr Taripo and his colleagues needed to clear up rubbish on Level 2 before they could perform their work. Mr Taripo was cleaning up rubbish around the mechanical ventilation shaft when he picked up the plywood covering the opening and fell through the opening, approximately 9 to 10 metres to the concrete floor on the basement level. 16. Mr Taripo sustained injuries as a result of the fall including an open right mid-foot dislocation, a fractured left tibia and fibula, open fracture to the left heel bone, and a pelvic fracture. 17. Mr Taripo states that he thought the plywood was part of the rubbish that he was clearing up. Mr Taripo was not aware that there was a penetration in the concrete slab on Level 2. He was not informed about the presence of the penetration by anyone employed by Ms Marsters or Hyecorp. The plywood covering the penetration was not secured and there was no indication in the concrete slab that it had ever been secured. There was no signage or warnings to indicate that a penetration existed on Level 2, nor was there any fencing or barricades placed around the penetration. SYSTEM OF WORK BEFORE THE INCIDENT 18. Prior to the incident Ms Marsters did not undertake an adequate risk assessment for the work to be performed on Level 2 at the premises. Ms Marsters was not on site when a risk assessment was done but when she spoke to her employees, they informed her that a risk assessment was done. 19. Ms Marsters provided Hyecorp with a written safe work method statement ("SWMS") dated 16 September 2006. The SWMS for the premises was generic and not specific for all the work to be conducted at the premises. The SWMS failed to identify each specific task undertaken at the premises, including the work to be conducted on Level 2 on the date of the incident. The SWMS addressed the risk of falling from height through penetrations. However, this was in respect of suspended slabs and did not pertain to the penetration on Level 2. Mr Taripo was not shown a copy of the SWMS. 20. Ms Marsters left it to the supervisor or builder to go through the SWMS with her employees. 21. Ms Marsters was not aware that there was a penetration on Level 2 where the incident occurred. It was her understanding that her employees received induction training at the premises when they started work at the premises but was not aware of who conducted the induction. 22. Prior to the incident, Ms Marsters had not attended the premises. Ms Marsters had very little involvement at work sites and relied on the provision of a supervisor to give instructions at a site. Ms Marsters relied upon her employees checking with the builder on site to make sure that the site is safe for them to work on and for employees to make sure they have their safety helmets, vest, boots and green cards. Ms Marsters instructed her employees to contact Mr Arai if they needed instructions or clarification. 23. Ms Marsters relied on others to go through OHS instruction and training with her employees. 24. Ms Marsters does not attend sites and relies on Mr Arai or the supervisor of a particular job to attend each site. SYSTEM OF WORK FOLLOWING THE INCIDENT 25. Following the incident, Ms Marsters now arranges for Mr Arai to attend a site with employees to meet the builder prior to the commencement of work to discuss any safety issues. COOPERATION WITH WORKCOVER 26. Ms Marsters co-operated with the prosecutor in the investigation of the incident. PRIOR OHS CONVICTIONS 27. Ms Marsters does not have prior convictions under the Occupational Health and Safety legislation. 3 I find, on the basis of the material contained within the agreed statement of facts, that the offence has been made out and that it is appropriate to convict the defendant accordingly. 4 The defendant was self-represented. She said from the bar table that she ceased the business activities in which she was engaged at the time of the incident that gave rise to these proceedings, about 18 months ago and she now devotes herself full-time to the care of her five children. She is bankrupt and has indicated that she will never go into business again in any activity of the kind engaged in by Western City Construction. 5 It was the defendant's position that the cause of the incident was essentially the fault of the occupier of the building site in that an unsafe situation had been created by covering up a hole in the floor area with a piece of plywood which looked to Mr Taripo as though it were a piece of rubbish which he was in the process of removing. Nevertheless, the defendant conceded the matters which are clearly adverted to in the agreed statement of facts. 6 The defendant said that immediately after the accident, she endeavoured to give such assistance as she was able to Mr Taripo including the payment of his medical expenses and wages whilst his workers compensation claim was being processed. 7 The commencing point for the assessment of an appropriate penalty is the objective seriousness of the offence. There can be no doubt that the presence of the hole in the flooring as described in the agreed statement of facts created a significant risk of injury, compounded by the height of the floor from ultimate ground level. The plywood covering the hole was not fixed in any way, there were no physical barriers to indicate the danger posed by the existence of the hole, and there were no warning signs of any kind to alert anyone to the potentially dangerous situation. These circumstances were aggravated by the fact that neither the defendant nor any senior representative of the defendant attended the construction site on the day of the accident and the defendant relied upon the head contractor to induct her employees and to take them through safe work methods statements. No independent assessment of the safety of the area where the employees were required to work was undertaken by the defendant. 8 In all the circumstances, the charge to which the defendant has pleaded guilty must be seen objectively as a most serious one, notwithstanding the defendant's position that the overall responsibility for safety of the building site divested upon the head contractor. 9 In determining an appropriate penalty, I shall take into account the general deterrent effect that such a penalty will have within the construction industry. There is, however, no need to consider the specific deterrent effect on this defendant given the fact that she is no longer engaged in the building industry and has indicated that she will never do so again. 10 There are a number of mitigating factors that the Court is entitled to take into account in assessing penalty, which are subjective to the circumstances of the defendant. She pleaded guilty at the first appropriate opportunity, co-operated fully with the prosecutor in and about the investigations conducted by the WorkCover Authority of New South Wales and has expressed remorse and contrition for what has occurred, such expression being reflected in a tangible manner. 11 The maximum penalty is the sum of $55,000. The prosecutor sought orders for the payment of costs and a moiety of the penalty, which I propose to grant. 12 Having regard to all of the matters to which I have referred, I consider that an appropriate penalty is the sum of $10,000. Orders 13 I make the following orders: 1. The defendant is found guilty of the offence with which she is charged and convicted accordingly. 2. I impose a penalty in the sum of $10,000 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor assessed by the Court in default of agreement. 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