Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Estreich v Ceerose Pty Ltd [2011] NSWIRComm 50 Hearing dates: 11 April; 12 April; 14 April 2011 Decision date: 20 April 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: In relation to Matter No IRC 452 of 2010: (i) the defendant, Ceerose Pty Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in Matter IRC 452 of 2010 to which the defendant has entered a plea of guilty; (ii) the defendant is fined the sum of $90,000 with half that sum to be paid by way of moiety to the prosecutor; (iii) the defendant is to pay the costs of the prosecutor in the sum agreed or in the absence of agreement, as ordered by the Court. In relation to Matter No IRC 453 of 2010: (i) the defendant, Edward Doueihi, is found guilty of a breach of s 8(2) by operations of s 26(1) of the Occupational Health and Safety Act 2000 as particularised in Matter IRC 453 of 2010 to which the defendant has entered a plea of guilty; (ii) the defendant is fined the sum of $9,000 with half that sum to be paid by way of moiety to the prosecutor; (iii) the defendant is to pay the costs of the prosecutor in the sum agreed or in the absence of agreement, as ordered by the Court. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(2) s 26(1) - dogman falls from height on construction site - serious leg injuries - pleas of guilty entered after prosecution case closed and ruling on jurisdictional argument - fall from hoarding while removing formwork - hoarding not a usual place of work - no scaffolding or handrails provided - defendants unaware loads being lifted from hoarding - failure to induct crane crew - failure to ensure use of fall arrest devices or use of perimeter protection including fenced work platform - failure to instruct non-employees in use of such protective measures and failure of supervision - failure to ensure plant/equipment not stored on hoarding - failure to prevent access to hoarding - serious breach - general and specific deterrence - no prior convictions - not early plea but limited utilitarian value warrants modest discount - steps taken to address failures in safety system - penalties imposed Legislation Cited: Occupational Health and Safety Act 2000, s 8(2) s 10(1) s 26 (1) Cases Cited: Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 309 Category: Principal judgment Parties: Inspector Phillip Estreich (Prosecutor) Ceerose Pty Ltd (Defendant) Edward Doueihi (Defendant) Representation: Mr R Reitano of counsel (Prosecutor) Mr T Bland of counsel (Defendants) Criminal Law Practice, Legal Group, WorkCover Authority of NSW (Prosecutor) Johninfo Lawyers (Defendants) File Number(s): IRC 452 of 2010 IRC 453 of 2010 Judgment 1In mid-June 2008 a workplace accident occurred at a building site in Alexandria. At that time, Ceerose Pty Ltd ("Ceerose") was the principal contractor on the site and Mr Edward Doueihi ("Mr Doueihi"), who was the sole director and general manager, had arranged for P C Cranes Pty Ltd ("P C Cranes") to provide a crane and crew to remove formwork from the site. P C Cranes provided a 35 tonne mobile crane and a crew of two consisting of Mr Kuljanic, a crane driver and Mr Mackie, a dogman. Mr Mackie was in the course of lifting formwork material from a hoarding that faced the street when he fell and sustained a broken right heel, requiring an operation and the insertion of two pins. Mr Mackie also sprained his left ankle and continues to suffer pain in both knees. 2WorkCover Inspectors investigated this workplace accident. In due course Inspector Phillip Estreich commenced proceedings in the Court against Ceerose for a breach of s 8(2) of the Occupational Health and Safety Act 2000 and in the alternative, a breach of s 10(1) of the Act and proceedings were also commenced for a breach of s 8(2) and in the alternative, s 10(1) by operation of s 26(1) against Mr Doueihi. Both Ceerose and Mr Doueihi entered not guilty pleas. 3The hearing of these contested proceedings was listed for four days. At the commencement of the hearing the parties helpfully provided a document containing a substantial number of agreed matters and identifying a small number of factual matters in dispute. The case then proceeded with the prosecution calling evidence: the prosecution case was closed shortly before lunchtime on the second day. 4After the luncheon adjournment counsel for the defendants submitted that there was a fundamental flaw in the statements of charge in each matter. It was submitted, in essence, that the language used in the charge demonstrated it to be a charge brought under s8(1) and not s 8(2). The charge did not properly allege an exposure to risks but was framed in terms of a failure to "control" aspects of the work. It was submitted that the concept of control appeared in s 8(1)(a) but did not appear in s 8(2) and the concept of control was also central to a breach of s 10, the alternative charge. It was further submitted that the particulars pleaded in each case were part of the legal elements of the offence rendering it even more obvious that the charges were brought under s 8(2). It was common ground that the workplace accident involved non-employees and only s 8(2) was relevant. 5The Court was shown correspondence passing between the legal representatives for both parties where this problem had been drawn to attention many months ago and where it was alleged that the problem was of the same nature as found by the High Court in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HA 1. Despite this correspondence it was argued that the prosecutor had declined to clarify or amend the charge. 6After hearing argument the Court ruled that the statement of charge in each matter used the language of s 8(2) of the Act and therefore stated the legal elements of the alleged offence. The particulars were not part of the legal elements of the offence but were the necessary factual elements demonstrating the acts or omissions of the defendants as alleged by the prosecutor (see Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32). The use of the word "control" in the particulars was a reference to the risks and how the defendants might have controlled them. On the face of the statement of charge there was a valid charge under s 8(2) in each matter. 7Following that ruling by the Court the defendants were granted a short adjournment to consider their position. Upon resumption late in the afternoon of the second day of the hearing, both defendants entered pleas of guilty. The hearing resumed on the scheduled fourth day to receive evidence and submissions on sentence. 8The statement of charge in each matter was in substantially the same terms with the differences reflecting the operation of s 26 in relation to Mr Doueihi as a director. It is sufficient therefore to reproduce the essential parts of the statement of charge brought against Ceerose: The defendant, being an employer FAILED TO by its acts or omissions as particularised below, ensure that people (other than employees of the defendant) and in particular, Peter Justin Mackie, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while at the defendant's place of work contrary to s 8(2) of the Act. The particulars of the charge are that: (a) The risk was the risk of falling from height. (b) The defendant failed to ensure that the risk to people who were not its employees was controlled by the use of: (i)a fall arrest device; or (ii)a stable and securely fenced work platform (such as scaffolding or other form of portable work platform); or (iii)secure perimeter screens, fencing handrails or other forms of physical barriers capable of preventing falls from height; or (iv)other forms of physical restraint that are capable of arresting falls from height. (c) The defendant failed to inform and instruct people who were not its employees that the risk was to be controlled by the use of: (i) a fall arrest device, or (ii) a stable and securely fenced work platform (such as scaffolding or other form of portable platform); or (iii) secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height; or (iv) other forms of physical restraint that are capable of arresting falls from height. (d) The defendant failed to ensure that site inductions were carried out for people who were not its employees at the premises so that people who were not its employees were aware of the risk when working at the premises. (e) The defendant failed to provide supervision to people at the premises which ensured that people who were not its employees were not working at height with no fall protection in places such as those referred to in b (i) to (iv). (f) The defendant failed to ensure that plant and/or equipment was not stored and accessed by people who were not its employees on a hoarding that was not securely fenced. As a result of the defendant's acts or omissions people who were not its employees and in particular, Peter Justin Mackie, was placed at risk of injury. 9At the opening of the substantive case and with the tendering of a significant number of agreed facts, counsel for the prosecutor indicated that the Court would not be troubled by the alternative charge brought under s 10(1) and that the facts made it abundantly clear that the offence was a s 8(2) offence. When the guilty pleas were entered the Court understood that those pleas were entered in relation to the s 8(2) charges. 10The statement of agreed facts was accompanied by a number of photographs of the site and the hoarding from which Mr Mackie fell. The Court was also provided with: a factual inspection report prepared by Inspector Holcroft; an incident report prepared by Ceerose and an incident/near-miss investigation report prepared by P C Cranes; a P C Cranes mobile crane hire pre-job-site inspection checklist; a Safe Work Method Statement ("SWMS") and risk assessment for general lifting all terrain cranes prepared by P C Cranes; and, a P C Cranes document setting out the occupation health and safety management plan. The agreed statement of facts appears as an annexure to this judgment. Although substantially relying upon the agreed statement of facts, the prosecutor also relied upon the oral evidence called at the hearing before the guilty pleas were entered. It is to be noted that [32] was not totally agreed between the parties. The defendants did not agree with the words "generic" and the words "not site specific." They would agree that the plans were not "satisfactorily site specific" but no more. Having considered the documents, the Court is content to accept the words set out in [32] as established on the evidence. 11For the defendants two affidavits were read: an affidavit of Mr Edward Doueihi and an affidavit of Mr Rouad Elayoubi. Neither deponent was required for cross-examination. Mr Doueihi gave evidence about the site management structure for the defendant company between early 2008 and July 2008. A Mr Krkovski was engaged as a site foreman in March 2008, Mr Dean Bottle was engaged as a leading hand in March 2008 and Mr Christian Moulin was engaged as a labourer during this period. At the time of the accident the defendant company had engaged five labourers either on a full-time or part-time basis. The company had engaged Mr Kevin Gebreal as a project manager and in July 2008, Mr Tony Challita was appointed as the site foreman. Mr Doueihi was the sole director of the defendant and stated that he was responsible for the project at Alexandria and what occurred on site. He was the licensed nominated supervisor for the defendant company. Mr Doueihi stated that his duties included engaging employees and overseeing the work undertaken on site. Part of his responsibility was overseeing the engagement of employees, making sure that they understood and carried out their responsibilities and obligations regarding workplace safety, implementing the company's policies regarding work methods and ensuring the project was professionally undertaken. 12Mr Doueihi spoke about engaging, in 2004, an occupational health and safety consultant to review and develop the company's procedures and guidelines for the work they performed in the construction industry. He was involved in numerous meetings and in due course a comprehensive occupational health and safety manual was developed. Examples of its contents were placed before the Court. The manual was designed to be maintained and developed over time and was applied to the project at Alexandria. It was demonstrated to the Court that, at that site, Ceerose had a site safety plan; a site diary; workplace induction registers; Work Method Statements; crane safety and service log; sub-contractors' Safe Work Method Statements; reports on safety toolbox talk; site safety instructions to sub-contractors; site specific details and project site safety plan and general site requirements. 13The company's approach was that, at each site, consideration was given to how the occupational health and safety records were to be maintained and developed for that project. Safety plans were reviewed at the beginning of the project to ensure they were suitable for the work required. As the Alexandria project site was located directly above a railway corridor the safety plan included a comprehensive rail safety plan. 14In relation to the Alexandria site, Mr Doueihi spoke in detail about the procedures arranged for the work involving the project manager. A site specific safety plan concerning the rail corridor was separately developed. The Alexandria project was the company's only project at the time. Mr Doueihi spoke of the site manager being the "eyes and ears" of the company on site and it was the site manager and the project manager who had responsibility for ensuring safety requirements were being complied with. Generally, the site manager together with the project manager, implemented and policed safety compliance on a daily basis. 15Mr Doueihi, as the nominated supervisor and owner of the company, conducted formal site safety walks with the project manager approximately twice a week, had a general presence on the site and was in the site office almost on a daily basis. Site safety walks occupied about an hour. Details were given as to how Mr Doueihi would raise safety issues on the site and how sub-contractors would be warned or dealt with where measures were found to be inappropriate. 16The company's policy dealt with the requirement for site inductions for all new entrants to the site including "tools talk" meetings and how general site records were kept on a daily basis for every person entering and leaving the site. The company's safety system was designed to integrate with sub-contractors' safety systems to ensure that the Work Method Statements and policies of sub-contractors were adequate and being implemented by the sub-contractors. The company relied on sub-contractors' experience with their own trade to fashion appropriate Safe Work Method Statements but the company's aim was to integrate its system with those of the sub-contractors to provide a framework for the project manager and site managers to work within them. 17The accident on site involving Mr Mackie was placed in the context of a period of difficulty experienced with the formworkers at the site. In particular, in late May 2008, Mr Doueihi spoke to a representative of the formworkers and drew attention to the fact that formwork was stored on the hoarding where it was not permitted. The formworkers were told that they were not to be on the hoarding but that they were to leave their formwork there for the time being and the hoarding sub-contractors would remove that material when the hoarding was dismantled. Mr Doueihi thought that would occur very soon. He thought that the formworkers had accepted his instruction. 18A particular representative of the formworkers was ultimately given a notice to leave the site but on the day of the accident was shown to be on site without seeking permission to return. The site reports for that day show that formworkers were involved in removing "ply and timbers" from the site. Mr Douihi was informed that neither the formworkers nor the crane operators advised the company staff that they were working on the hoarding although the site report for that day showed that management staff were aware that formwork was generally being removed from buildings on the site but not from the hoarding. The company's leading hand/supervisor, Mr Bottle, had stated that, up to the incident, the site manager and the foreman were working on other parts of the building at the time of the incident and could not see the work in question. 19The hoarding had been constructed over the Council pavement and was built according to structural plans supplied by consulting engineers. There was a two-metre distance between the actual building and the hoarding but there was no physical access to the hoarding unless a person took steps to arrange their own access. The company's policy was that there was no access to the hoarding for any purposes and for that reason it was unnecessary to install handrails or fall arresters. The remaining building site was completely secured and fenced off by scaffolding, fencing and barriers but there was no direct access provided to the hoarding, as it was never intended to be a worksite. 20It was noted that P C Cranes had completed the pre-job site inspection checklist after the accident. P C Crane's documents described the work as the lifting of formwork while the site diary showed that the work was to remove formwork from three buildings on the site. The P C Crane's safety manual documented the use of fall protection where it was identified as being required but Mr Doueihi was unaware why the crane crew at the site did not have and use fall protection on this day. He noted that P C Cranes and the formworkers had safety systems to address risks of this nature but neither company appeared to have followed those systems. There was no Ceerose site management immediately present during the time this work was being carried out. 21In relation to site inductions, Mr Doueihi agreed that they were important aspects of workplace safety and the failure to conduct them contributed to the risk to health and safety. The company's records showed discrepancies and lapses in the maintenance of the site induction register but the company records showed that, in other instances, the system was followed. An explanation of the system and how it was designed to work was provided in some detail by Mr Doueihi. He stated that the failure to promptly induct a new employee or site visitor at the time of their arrival was not acceptable to the company and represented a failure by the company and the sub-contractor amounting to non-compliance with the site requirements. Mr Doueihi accepted that there had been lapses in the implementation of site induction policy and he had attempted to rectify the matter and since the accident he had become more pro-active in ensuring compliance. 22In relation to the failure of supervision raised by this accident it was noted that this area of the hoarding was not directly visible from within the site. The work on this morning was not authorised by the defendant company or its staff and was done without the knowledge of the company's staff. The formworkers had been directed not to touch the material that had been improperly stored on the hoarding. Details were provided of the manner in which supervision was usually carried out on the site. 23As earlier indicated the company's occupational health and safety system was under continual review and refinement. In recent years the company had grown in size with four jobs in progress and a number of jobs being committed with commencement dates between two months and twelve months. Over the past eighteen months, Mr Doueihi had revised the company structure to include an additional level of management and now a project manager, depending on his experience, was responsible for one or two projects. Each project had its own site manager and site foreman and two labourers. In November 2010 the company employed a site safety officer and provided him with additional training programmes at the cost of the company. 24Mr Doueihi spoke about the company's safety systems being a continual work-in-progress. He conceded that, at the time of accident in mid-June 2008, while the company had a workable safety system in operation, the accident showed that there was "room for improvement." The company's implementation of its system was well intentioned and he had put significant effort into the implementation of the safety system. The company remained committed to improving its safety system. The senior project manager, Mr Elayoubi, had introduced new site-specific guidelines. The new policy had been introduced between August and September 2010 with ongoing training, direction and instruction provided to all the company's staff. 25In his affidavit, Mr Elayoubi set out details of his position as the project manager for the company as well as outlining his employment history and qualifications. He explained his role as senior project manager and how he was involved in developing safety systems, reviewing those systems, co-ordinating project managers and attending management staff meetings to discuss safety issues. It was part of his role to improve all the project management systems, including the safety issues. Mr Elayoubi gave extensive details of the way in which he had developed and improved the safety system for the company. He was of the view that the existing safety manual prepared by the consultant was comprehensive and well designed but changes were needed to reflect specific issues on projects. On site record keeping needed to be simplified. The company's safety system had to be effectively integrated with the sub-contractors' systems with which they were familiar and reflect their experience in undertaking their work. 26Mr Elayoubi spoke about the use of meetings to make the safety system effective and in particular, gave details of general site supervision and site walks by site management and foreman, formal site safety talks, sub-contractor site meetings, site inductions and project meetings. He also had responsibility to ensure that management staff understood the company's safety system and in that respect, training was an ongoing process. He expressed the view that the company was heading in the right direction with its safety system but that they could "always do more to improve it and improve awareness of the need to continually implement the system and improve their skills." DELIBERATION 27There is no doubt that this was a serious breach of the Act. Counsel for the defendant accepted that description of the offence but wished to place it in a context that stressed the relatively low level of criminal responsibility of the defendants. In this case there was a fall from heights while performing work in the construction industry - an all too well known and frequent occurrence. It was agreed between the parties that the fall was from a height between 2.2 and 3 metres but it is the risk of the fall that has to be addressed. The injuries sustained by Mr Mackie demonstrate the potential for very serious injury - as it is, Mr Mackie landed on his legs rather than on his neck or head but still sustained severe injuries. The defendant company had a safety system that addressed falls from height and the SWMS for work performed by the crane crew and the formworkers also recognised this risk and laid down preventive measures. Despite that level of recognition, this accident occurred. 28There was some debate as to precisely how it came to pass that this work was being performed in relation to formwork on the hoarding. It was an agreed fact that the actions taken between the formworkers and the crane crew to remove this material from the hoarding was action undertaken without the approval or knowledge of the defendant company or Mr Doueihi. Site documents placed in evidence appear to support such a conclusion. Mr Doueihi's uncontested evidence was that he was concerned that formwork had been placed on the hoarding and directed the formworkers to leave it there and he would make arrangements for the removal of the formworkers' material when the hoarding was demolished. 29On the day of the accident it appears that the defendant company had arranged for the crane crew to be on site to remove formwork from the buildings but it was not their intention to move the formwork from the hoarding. The defendant company did not conduct an induction and there is some evidence that the formworkers pressed the crane crew to remove the formwork material from the hoarding. It is at least a possibility that, if the induction had occurred, there would be some discussion about the work to be performed and the risks may have been addressed, especially if it had been disclosed that work was to take place on the hoarding. Here, there was no scaffolding or handrails to prevent a fall nor where there are any directions that the dogman wear a safety harness or adopt some other measure to prevent a fall from the hoarding. 30It is relevant, however, that the hoarding was not a place where work was normally to be performed but was a protective measure established over the public footpath. The defendant company had given instructions that the area was not a work area and in those circumstances it was thought unnecessary to install scaffolding or handrails. In his oral evidence, Mr Mackie confirmed that no one had asked the defendant company about the lift of the material from the hoarding. The crane driver thought that the company foreman had asked for this lift to be undertaken but he could not remember exactly who had given this instruction. To perform this work Mr Mackie had arranged a ladder in order to obtain access to the hoarding. There was no other access available. 31This work on the hoarding was conducted during a period when there were light showers that interrupted the work. The surface was slippery but on the evidence it is unclear precisely what happened to Mr Mackie: he may have slipped but there are site notes that indicate that there was a movement of the load that caused him to move sideways and at this point he fell. The Court accepts the submission for the prosecutor that the precise way in which Mr Mackie fell is of little relevance in this matter and that it is necessary to concentrate on the risk alleged in the statement of offence, namely, a risk of falling from height. 32In this case, as was charged, the defendants had failed to ensure that this risk was addressed by the use of fall arrest devices or a stable and securely fenced work platform or secure perimeter screens, fencing handrails or other forms of physical barriers or other forms of physical restraint capable of arresting falls from height. There was a failure to inform and instruct the crane crew that the risk could be addressed by these very same measures. It was also established and accepted that the defendant failed to ensure that there were site inductions addressing these issues and there was a failure to provide supervision at the premises to ensure that non-employees were not working without fall protection. There was also a failure to ensure that plant or equipment was not stored on the hoarding and accessed by people who were non-employees in circumstances where the hoarding was not securely fenced. The Occupational Health and Safety Regulation indicated the relatively simple and straightforward steps that needed to be taken to address this risk: that was also demonstrated by the measures taken by the defendant corporation after the accident. 33The penalty to be imposed will reflect the necessity for both general and specific deterrence. This case, in its particular circumstances, should be another warning especially for those in the construction industry about the need to be vigilant to prevent falls from height. While it is understandable that the work methods of sub-contractors will be accepted on work sites because of their specialist skills, nevertheless, ensuring that those safety measures are adhered to is part and parcel of project management. Having regard to the circumstances of this incident, specific deterrence, while necessary, should play a reduced role even though the defendants continue in the industry. The defendant company has a good safety record and the circumstances of this accident were unusual. 34In relation to subjective matters, the issue that most divided the parties was the question of the extent to which, if at all, there should be any discount because of the pleas of guilty ultimately entered by the defendants. The prosecutor relied upon numerous passages from the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; At [130] the Court noted that the earlier the plea was received the greater the public benefit. The various benefits to the court and justice systems were discussed, including reducing the waste of time of witnesses and the reduction in congestion in court lists being matters of relevance in this particular jurisdiction. Other issues were of particular relevance to the general court system rather than the jurisdiction exercised by this Court. 35Particular emphasis was placed upon the following passages in the guideline judgment: [132] All of these benefits are significantly attenuated, if not lost, to the extent that pleas occur only on the day of trial. In so far as such benefits are achieved, they enable the criminal justice system as presently resourced to reduce delays with further attendant advantages. [ 133] From the utilitarian perspective alone, an early plea offers distinctive and substantially greater benefits over a plea that occurs at the commencement, let alone during, a trial. By the time of the trial considerable expenditure has been incurred by the prosecution and the defence in preparing the case, witnesses and victims are in attendance, a substantial proportion of the cost of the legal aid system has already been incurred and a jury panel has been required for attendance. Furthermore, although backup trials, either criminal or civil, may be available to employ the court's time made available without notice, that may not always be the case. The frequency with which guilty pleas are made on the day of the trial is a matter which considerably disrupts the efficiency with which courts in New South Wales can plan the use of their resources. The listing of reserve trials can never be precisely accurate. This results on some occasions in adjournments, and consequently waste of resources by the parties, and on other occasions in waste of judicial and court time. 36In the present case the pleas were entered halfway through the second day of a four-day hearing and so it is quite impossible to categorise them as "early pleas" as identified in the guideline judgment. In terms of efficiency, the parties used the fourth day of the hearing to conclude the sentencing: in terms of the optimum use of the Court's resources that represents a significant utilisation of the time set aside for the hearing having regard to the fact that there were some factual issues still in contest that were substantially resolved by the evidence called. Having regard to the fact that the Court would be required to consider in some detail the evidence if the trial continued and would then be called upon at some later time, if a conviction was recorded, to deal with sentencing, it is accepted that there has been some efficiency achieved by these pleas of guilty even though they occurred at a late stage. 37The defendants, in particular, pointed to the jurisdictional issue raised at the close of the prosecution case and the fact that this had been a live issue for many months but not addressed or adequately addressed by the prosecutor. Once the Court had ruled on this issue and following a short adjournment, pleas of guilty were promptly entered. The prosecutor contested that categorisation of what occurred, submitting that the issues raised about the validity of the offences were difficult to understand and indeed, appeared to be put on a different basis in oral argument before the Court. Be that as it may, there appeared to be a genuine concern by the defendants about the manner in which the charge was drawn. The defendants' prompt pleas of guilty once that issue was dealt with by the Court does suggest that a more informed discussion between the parties, especially as part of case conferencing, may have achieved this result at an earlier time. This is not a matter for apportioning fault but is one for identifying any legitimate concern that may have inhibited an earlier plea. The issue as to the validity and nature of the charge could, of course, have been addressed prior to the trial and indeed, could have been addressed before the prosecutor commenced his case. Taking all these matters into account, the Court is able to identify a modest utilitarian benefit in the late pleas. In all the circumstances it would be appropriate, on this basis, to allow a five per cent discount for the pleas of guilty. 38There are other subjective factors. The defendants are first offenders and are entitled to the leniency that attends upon that status. They have participated in this high-risk industry since 1999 without coming to attention and that speaks well of their usual systems of safety and their attention to matters of safety. The defendants acted promptly to address the defects in their safety system, especially as to induction, following this accident. The defendant company has continued to expend resources on reviewing and updating its safety systems. These matters will be taken into account in mitigation. It is clear also from the evidence of Mr Doueihi that the defendants have taken responsibility for these deficiencies and the accident resulting in Mr Mackie receiving severe injuries. Mr Doueihi expressed his disappointment that the defendant company's safety systems had fallen down in ways demonstrated by this accident. 39Having regard to all these matters, the Court makes the following orders: (a) in relation to Matter No IRC 452 of 2010: (i) the defendant, Ceerose Pty Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in Matter IRC 452 of 2010 to which the defendant has entered a plea of guilty; (ii) the defendant is fined the sum of $90,000 with half that sum to be paid by way of moiety to the prosecutor; (iii) the defendant is to pay the costs of the prosecutor in the sum agreed or in the absence of agreement, as ordered by the Court. (b) in relation to Matter No IRC 453 of 2010: (i) the defendant, Edward Doueihi, is found guilty of a breach of s 8(2) by operations of s 26(1) of the Occupational Health and Safety Act 2000 as particularised in Matter IRC 453 of 2010 to which the defendant has entered a plea of guilty; (ii) the defendant is fined the sum of $9,000 with half that sum to be paid by way of moiety to the prosecutor; (iii) the defendant is to pay the costs of the prosecutor in the sum agreed or in the absence of agreement, as ordered by the Court. ANNEXURE STATEMENT OF AGREED FACTS 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 Ceerose Pty. Limited ... was a corporation whose registered office is situated at Zoom Tax Pty Ltd, 54 Burwood Road, Burwood in the State of New South Wales. 3. At all material times Edward Doueihi ... ("Mr Doueihi") was the sole director and the general manager of Ceerose. 4. Mr Doueihi has approximately 10 years experience as a builder, and prior to that was a labourer and leading hand. Mr Doueihi holds a certificate IV in building, and has qualifications for dogging, hoist driver, bobcat and excavation. 5. Ceerose Pty Ltd ("Ceerose") was the principal contractor for a construction site located at 27-41 Wyndham Road, Alexandria, in the State of New South Wales ("the premises"). Ceerose had approximately 4 employees working at the premises. 6. Ceerose employed Dean Bottle ("Mr Bottle") as a leading hand/supervisor at the premises. Mr Bottle worked for Ceerose for three months prior to the incident and holds at Certificate III in carpentry, a Certificate IV in building and a Diploma in Building Management. 7. Ceerose subcontracted Platinum Formwork Pty Ltd ("Platinum Formwork") to provide falsework/formwork, installation of steel reinforcement and concrete placement at the premises. 8. Ceerose subcontracted P.C. Cranes Pty Ltd ("PC Cranes") to provide a crane and crew to perform general lifting at the premises. Ceerose had engaged PC Cranes to work at the premises on several occasions prior to the incident date on 17 June 2008. 9. At all material times PC Cranes was a corporation which undertook the business of mobile crane hire and crane operations. PC Cranes' business consisted of hiring out cranes with crane crews for use on construction premises. PC Cranes was incorporated on 22 January 2007 and has continued to trade since that time. Bruno Maviglia ("Mr Maviglia") was the sole director of PC Cranes. 10. At all material times PC Cranes conducted its business at premises located at 22 Kilton Crescent, Glendenning in the State of New South Wales and was an employer. PC Cranes carried on its business at various construction and other premises throughout New South Wales. 11. PC Cranes employed David Clouston ("Mr Clouston") as OHS manager. He commenced working for them in March 2007. Mr Clouston was responsible for accounts, crane permits, equipment and crane inspections, ensuring employee accreditations were up to date and ran training packages on topics including working on rail and near power lines. Mr Clouston developed and implemented the documented system of work for crane crews. Mr Clouston reported directly to Mr Maviglia. 12. PC Cranes employed Francis Damon Alexander ("Mr Alexander") as a supervisor. He commenced this employment in July 2007. Mr Alexander is a qualified dogman and holds an open mobile crane ticket. Mr Alexander's duties include supervision of work activities and canvassing for work for PC Cranes. 13. PC Cranes employed Tony Kuljanic ("Mr Kuljanic") as crane driver. Mr Kuljanic holds a crane ticket to operate a mobile slewing crane up to 60 tonnes. Mr Kuljanic also holds qualifications for dogging and the operation of elevated work platforms. Mr Kuljanic had approximately 1 years experience operating a crane, and 8 years as a dogman. Mr Kuljanic's direct supervisor was Mr Alexander, although when out on a job Mr Kuljanic was considered the senior employee if there was no other PC Cranes supervisor present at the work premises. 14. PC Cranes employed Peter Justin Mackie ("Mr Mackie"). Mr Mackie was 28 years old at the time of the incident. Mr Mackie was a qualified Dogman with approximately 3 years experience, and had been working for PC Cranes for approximately two years and had been working directly with Mr Kuljanic, full time, for around 9 months. Prior to becoming a dogman, Mr Mackie was a hydraulic fitter for approximately 8 years. Mr Mackie also was licensed to operate an elevated work platform, had completed the OHS Construction Induction Training Certificate and had received training in working near overhead power lines. 15. Three, four storey concrete tilt slab buildings were under construction at the premises at Alexandria. A steel framed timber hoarding approximately XX metres in height and 30 metres in length fronted the full length of the construction premises and incorporated overhead protection over the footpath. Approximately half way along the hoarding there was an opening approximately 3.6 metres wide, with a sliding gate constructed of plywood over a steel frame. There were hand rails/boards on the hoarding on the side that faced the street. There were no handrails or other barriers on the side of the hoarding closest to the building under construction. Incident 16. On 17 June 2008 PC Cranes dispatched the 35 tonne Leibheer mobile crane, identification number 351, and crew to the premises. The crew consisted of Mr Kuljanic, crane driver, and Mr Mackie, dogman. PC Cranes supervisor Mr Alexander was not present at the premises on this date. 17. Mr Mackie had been to the premises at least once at month for approximately 6 months prior to the incident to undertake work as a dogman. Mr Mackie was not inducted into the premises. 18. Formwork materials, including plywood and frames, had been placed on top of the hoarding. The deck of the hoarding on which the formwork materials were stacked was made of smooth steel plate, with a painted blue surface. The crane was not visible from this area of the hoarding. There was no obvious means of access to this section of the hoarding. It had been raining and there was water on the surface of the deck of the hoarding. 19. The materials had been placed on hoarding. 20. At approximately 7:30am on 17 June 2008 Mr Mackie and Mr Kuljanic arrived at the premises and set up the crane between the two buildings under construction. The crane was located approximately 15 - 20 metres from the hoarding, and was located on the other side of a wall. Mr Kuljanic could not see Mr Mackie when he was on top of the hoarding. Mr Mackie and Mr Kuljanic used a two-way radio to communicate with each other. Mr Mackie had a whistle as a back up if the two-way radio failed. 21. The crane was located in an area classed as a suspended concrete slab, with a penetration with stairs beside the crane. Ceerose had provided back propping so that the crane could be set up in this area. 22. The formworkers told Mr Mackie the materials on the hoarding were to be lifted down in order that the formworkers could load them onto their truck. The formworkers got a ladder and Mr Mackie placed it so that he could climb up onto the hoarding. Mr Mackie slung one or two loads that were located on the lower part of the hoarding. 23. The remaining formwork materials to be lifted were located on the higher section of the hoarding than the previous two lifts. Mr Mackie identified the risk of the crane hook and ropes being in close proximity to the power lines during the lift. Mr Mackie estimated the power lines were between 4 and 5 metres from the top of the hoarding, but was concerned about the distance between the power lines and the chains of the crane whilst the chains were being lowered between the building and the powerlines. 24. Mr Mackie asked the two formwokers on the hoarding with him to move the formwork materials down to the lower part of the hoarding area so as to allow a greater distance between the chains and the power lines. The formworkers asked Mr Mackie to lift a pallet jack onto the hoarding with the crane for the purpose of moving the formwork materials down onto the lower level of the hoarding, and Mr Mackie complied with this request. 25. The formworkers constructed a makeshift ramp from 3 pieces of timber and a sheet of plywood on to which they could use the pallet jack to move the load down the step down in the hoarding. The formworkers moved the load to the lower level of the hoarding with the pallet jack and makeshift ramp. They placed the load on two pieces of timber. 26. Mr Mackie was setting up for the lift, talking to Mr Kuljanic on the two way radio, and waiting for the chains to come to him. Mr Mackie estimated he had between 200mm and 300mm between the load and the edge to walk around the load. Mr Mackie turned to face the building as he made a 'sort of jump', and he fell approximately XX metres onto the concrete below. Mr Mackie landed on his right leg, then on his left leg. 26A. The actions undertaken in paragraph 22 to 26 where undertaken without the approval of knowledge of Ceerose or Mr Doueihi. 27. Mr Kuljanic saw someone coming, waving their hands saying Mr Mackie had fallen. Mr Kuljanic did not see Mr Mackie fall. Mr Kuljanic exited the crane and went to assist Mr Mackie. 28. George Boulos ("Mr Boulos"), an employee of Platinum Formwork, was walking around the area where Mr Mackie was working on the hoarding. Mr Boulos saw Mr Mackie putting on chains and then saw him fall. 29. Mr Bottle was setting out walls on the second floor of the Block B at the premises and was not aware that Mr Mackie had fallen. Mr Bottle was not aware why Mr Mackie had been up on the hoarding, and that the system of work had been devised between the crane crew and the formworkers, without his knowledge. 30. One of the formworkers went across the road to a service station to get some ice. Mr Mackie removed his shoe and elevated his right leg until an ambulance arrived and transported him to Royal Prince Alfred Hospital. Injurie s 31. Mr Mackie sustained a broken right heel, which required an operation to insert two pins to secure the heel in place. Mr Mackie also sprained his left ankle and suffers pain in both knees. Mr Mackie returned to work for four days following the incident. Systems Prior 32. Prior to the incident Ceerose had a generic OHS management plan which was not site specific and a generic project premises safety plan which was not site specific. The OHS management plan required all subcontractors to provide a safe work method statement ("SWMS") for the work they were performing. ++++ (See [10] of judgment regarding extent to which this was agreed). 33. The OHS Management Plan required Ceerose to obtain all SWMS from all subcontractors prior to commencing work. 34. The system of work for removing the materials from the hoarding was decided between the formworkers and the crane crew. 35. PC Cranes had a documented system of work developed and implemented by Mr Clouston in the form of a log book kept with each crane. The log book contains crane maintenance logs, general lifting OHS procedures, hazard identification and risk assessment material, and Material Safety Data Sheets ("MSDS"). A copy of the log was also retained at PC Cranes premises. 36. PC Cranes had a generic SWMS and risk assessment that was required to be completed prior to any work commencing at any premises. On the date of the incident Mr Kuljanic completed the SWMS and risk assessment after Mr Mackie had fallen from the hoarding and provided it to Ceerose. 37. Part of the PC Cranes system of work includes the mobile crane hire pre job premises inspection checklist. The checklist is a tool for crane crews to identify, assess and control or report any potential risks at job sites. The checklist must be completed by the crane crew and provided to the principal contractor at the premises, prior to the crew commencing work. PC Cranes did not provide any fall protection or fall arrest system, such as a harness, for Mr Mackie to use on the date of the incident. PC Cranes did not ensure that Mr Mackie used a fall arrest system, such as a harness, when working from heights. Harnesses were available for use if required, however this equipment was kept at PC Cranes premises and was not easily available to Mr Mackie on the date of the incident. If a harness was required for a job arrangements to use the harness needed to be made prior to attending the job premises. 38. Mr Alexander was not supervising the job on the date of the incident. Mr Alexander had visited the premises on numerous occasions over an eight month period prior to the incident. Systems Following 39. Following the incident PC Cranes reiterated to its employees the importance of following the documented systems of work and that supervisors were to be contacted immediately if the client is requesting actions that are not safe. 40. Following the incident PC Cranes engaged the services of an OHS consultant to review and implement any changes to their current systems. 41. PC Cranes, as part of their upgraded OHS System, have introduced a company safety induction card to ensure all employees have undergone training in the upgraded OHS procedures and that all employees hold the required competencies for their work. 42. Ceerose conducted an investigation of the incident and found that Mr Mackie should not have been working off the hoarding. 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. Decision last updated: 20 April 2011