Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector North v Watt and Suncoast Formwork Pty Ltd [2011] NSWIRComm 93 Hearing dates: 1 July 2011 Decision date: 14 July 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1) Each of the defendants is found guilty of the offence with which it and he is charged and convicted accordingly. 2) A monetary penalty of $125,000 is imposed on Suncoast Formwork Pty Ltd and of $12,500 is imposed on Gary James Watt, with a moiety in each case to the prosecutor. 3) The defendants are to pay the costs of the prosecutor in an amount assessed in default of agreement in the proportion that the respective penalties imposed upon each of them bears to the aggregate of the penalties so imposed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(2) of the Occupational Health and Safety Act 2000 by corporate defendant - personal defendant deemed guilty of same offence by virtue of s 26(1) - early guilty pleas - appropriate penalties - objective seriousness - general and specific deterrence - cooperation with the WorkCover Authority - remorse and contrition - no prior convictions - penalties imposed - orders made Legislation Cited: Occupational Health and Safety Act 2000 - s 8(2), s 26 Category: Principal judgment Parties: Inspector Steven North of the WorkCover Authority of New South Wales (prosecutor) Garry James Watt (defendant in IRC 233 of 2010) Suncoast Formwork Pty Ltd (defendant in IRC 234 of 2010) Representation: Mr C Magee of counsel (prosecutor) Mr M Barko of counsel (defendants) Criminal Law Practice, Legal Group WorkCover Authority of New South Wales (prosecutor) Beazley Singleton Lawyers (defendants) File Number(s): IRC 233 of 2010 IRC 234 of 2010 Judgment 1The prosecutor, Inspector Steven North of the WorkCover Authority of New South Wales, has charged each of the defendants, Gary James Watt and Suncoast Formwork Pty Ltd ("Suncoast"), with a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"). Each has pleaded guilty to the charge. 2The charge brought against Suncoast is that being an employer on 3 April 2008 at a building site in Grafton, it failed to ensure that persons not in its employment, and in particular Lee Michael Tapping, were not exposed to risks to their health and safety arising from the conduct of its undertaking while at the defendant's place of work. The particulars of the charge are: The particulars of the risk are that: (a)The health and safety of persons other than the defendant's employees was put at risk of injury from being struck by a component half of steel column formwork shutter whilst undertaking the task of stripping the shutters from around concrete columns at the Site; The particulars of the acts or omissions in failing to eliminate the risk are that: (b)The defendant failed to provide a safe work method statement to its sub-contractors for the task of stripping steel column formwork shutters around concrete columns which: (i)Detailed the method of work required to be followed for the task of stripping of the steel column formwork shutters; (ii)Required that a means of support such as the use of a minimum of 1 acro-prop or other propping or securing device, be secured to the half of the shutter that was not attached to plant, at the commencement of the process of stripping the column, to prevent it from becoming unstable and falling during the process; (iii)Required that persons must be clear of the range (exclusion zone) in which they could be struck by a falling shutter, prior to the operator of plant commencing to lift and remove the shutter. (c)The defendant failed to provide and maintain a safe system of work in relation to the task of stripping steel column formwork shutters from around concrete columns at the Site, in that it failed to undertake measures as follows: (i)Ensuring that a means of support, such as an acro-prop with a fixed plate at the bottom was secured to each component steel column formwork shutter by a mechanically fixed lug and pin, to prevent the acro-prop from being removed or dislodged during the process of stripping of the component halves of the shutters; (ii)Ensuring that all persons were clear of the exclusion zone, prior to the operator of plant commencing to lift and remove the shutter from the concrete column; (iii)Requiring that its formwork subcontractor provide it with a Safe Work Method Statement for the task of stripping of the shutters from the concrete columns at the Site; (iv)Undertaking a risk assessment with respect to the task of stripping column formwork shutters at the Site prior to permitting work to be undertaken by its subcontractors in relation to the task; (v)Directing that its subcontractors, including Mr. Smith, must comply with a system of work in relation to the task of stripping of the steel column formwork shutters, that required the use of an acro-prop or other form of support to secure the free standing shutter whilst the first half was being lifted and removed by the Plant. (d)The defendant failed to provide information, instruction and training to its subcontractors and their employees in respect of the process of stripping of steel column formwork shutters at the Site in that it failed to undertake measures as follows: (i)Provide task specific information to Mr Smith and Mr Tapping in respect of the process of stripping of steel column formwork shutters; (ii)Provide a safe work method statement or Job Safety Assessment to Mr Smith and Mr Tapping which addressed the safe method for the task of stripping of steel column formwork shutters; (iii)Provide formal, documented training to Mr Smith and Mr Tapping in respect of the safe method of stripping of steel column formwork shutters at the Site; (iv)Undertake a formal assessment of Mr Smith's and Mr Tapping's ability to safety perform the task of stripping of steel column formwork shutters; (v)Inform Mr Smith and Mr Tapping of the risk of the unsecured shutters falling; (vi)Inform Mr Smith and Mr Tapping that he should always use at least 1 acro-prop or other support, to support and secure the freestanding shutter during the stripping process; (e)The defendant failed to provide supervision to Mr Tapping in relation to the task of stripping of steel column formwork shutters at the Site in that he failed to undertake measures as follows: (i)To supervise Mr Smith and Mr Tapping during the stripping process to ensure that they used at least 1 acro-prop or other propping or securing device, to support the freestanding shutter; (ii)Periodically monitor Mr Smith and Mr Tapping to ensure that they were complying with the safe procedures for stripping the shutters; (iii)Supervise Mr Smith while he was utilising plant known as the Telehandler, and undertaken an assessment of his competency to determine whether he had attained proficiency to operate the plant with a lower level of supervision. As a result of the defendant's failures a person, other than its employee, Lee Michael Tapping, was placed at risk of injury. As a result of the defendant's failures Lee Michael Tapping suffered fatal injuries. 3Mr Watt was charged with a breach of the same provision of the Act by reason of s 26, because he was, as he conceded, a director of Suncoast and, by virtue of s 26(1) of the Act, is taken to have contravened the same provision of the Act as Suncoast. 4The charge and the particulars of the charge against Mr Watt are relevantly identical with those brought against Suncoast, which I have set out above. 5Each of the defendants has entered a plea of guilty and this judgment is concerned only with penalty. 6There was tendered into evidence an agreed statement of facts, which is in the following terms: (1)At all material times the Prosecutor, Inspector Steven North, was duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106 of the said Act to institute proceedings in this matter. (2)SUNCOAST FORMWORK PTY LTD [ACN 105 427 763] ("Suncoast") is and was at all material times a corporation, whose registered address is situated at 107 Darby Street Newcastle in the State of New South Wales. (3)GARRY JAMES WATT ('Mr Watt') was at all material times a Director and Shareholder of Suncoast. Background (4)At all material times, Suncoast operated in the construction industry and undertook the construction, erection and dismantling of formwork. (5)Suncoast was Registered on 7 July 2003. It traded as Oakdale North Pty Ltd from 7 July 2003 to 14 March 2006. From 15 March 2006, it traded as Suncoast. (6)At all material times Suncoast had approximately 15 employees. (7)At all material times, McConaghy Built Pty Ltd ("McConaghy Built") was the Principal Contractor of a commercial construction site involving the redevelopment of premises known as 'Grafton Shopping World' at 43 Duke Street, Grafton and was the controller of the construction site. (8)McConaghy Built operated in the building and construction industry in New South Wales and Queensland. McConaghy Built was a subsidiary of the McConaghy Group Pty Ltd. (9)At all material times, Suncoast was contracted by McConaghy Built to complete formwork at the Site including the construction, erection and dismantling of formwork. (10)Suncoast engaged a range of subcontractors to undertake works in relation to the formwork at the Site, in addition to its direct employees. (11)Mr Watt's responsibilities for Suncoast at the Site included overseeing the formwork element of the construction project, liaising with the Principal Contractor, McConaghy Built, and Suncoast's subcontractors on the Site. He had authority to control and direct the work being undertaken by Suncoast's employees and subcontractors. He had authority to direct what work was to be undertaken on the Site. (12)Suncoast entered into a sub-contract arrangement with Mr Edward John Smith ("Mr Smith"), a qualified carpenter, in or about October 2007. (13)Pursuant to the sub-contract arrangement Mr Smith undertook various duties in relation to the construction, erection and dismantling of formwork at the Site. This included assisting with the construction of formwork for footings, pads and columns on the Site and erection and stripping of steel column formwork shutters. (14)The removal of the shutters was part of Mr Smith's undertaking, as it fell within the terms of the sub contracting arrangement he had with Suncoast. (15)The sub-contract arrangement between Suncoast and Mr Smith required the services of a labourer to be provided to assist Mr Smith in performing the formwork tasks at the Site. (16)Mr Smith provided Suncoast with a monthly invoice for the work that was performed by him and his formwork labourer at the site. (17)Initially the formwork labourer assisting Mr Smith was Mr Andrew Smith. (18)Lee Michael Tapping ('Mr Tapping') was a 33 year old male. (19)In or about March 2008, Mr Tapping approached Mr Smith and enquired as to whether he had any work available. (20)Mr Smith informed Mr Tapping that he required a labourer to undertake tasks in relation to the construction of formwork at the Site. (21)In about March 2008, Mr Tapping commenced undertaking formwork labouring duties associated with the construction, erection and dismantling of formwork at the Site. (22)Mr Smith was under the overall direction and supervision of Suncoast and its director Mr Garry Watt in relation to performing work associated with formwork on the site. (23)Mr Smith was responsible for the direction and supervision of Mr Tapping, when they worked together erecting and stripping the formwork column shutter system. (24)At the date of the incident, Mr Tapping had not received any payment for labouring work performed on the site however subsequent to the incident Mr Edward Smith received those monies from Suncoast and placed an envelope, a letter and the outstanding monies owed to Mr Tapping for work done at the site, under the door of Mr Tapping's mother, Susan Smith. (25)Mr Smith's invoice was paid by Suncoast and included the money due to Mr Tapping for his work at the Site, calculated at the rate of $27 per hour plus GST. The work being performed (26)Part of the redevelopment of the Site involved the construction of concrete columns. The plans for the redevelopment required the construction of approximately 390 concrete columns. (27)One of the tasks performed by Suncoast's employees and subcontractors at the Site was the erection and subsequent stripping of steel column formwork shutters ('shutters') used in the construction of the concrete columns. (28)The column formwork shutters were owned by Suncoast. They were designed by Mr Watt in consultation with an engineering company, KTR Engineering. (29)The shutters were used to form concrete columns, which were poured with concrete. The shutters were manufactured from steel plate and came in two halves which were bolted together to form a mould for a round column. The shutters were approximately 3 m high. (30)The shutters could also have an extension piece connected. One complete shutter including extension piece was approximately 3.6 m high, approximately 450 mm in diameter and weighed approximately 214 kg. (31)Mr Watt from Suncoast would give directions to formworkers, including Mr Smith and Mr Tapping, as to direction in which they were to set up formwork columns for pouring concrete. (32)It is estimated that the formworkers would set up between six and eight column formwork shutters per day in preparation for the pouring of concrete into the shutters. (33)At the date of the incident approximately 300 of the concrete columns had been constructed at the Site (34)The steel column formwork shutters were transported to a concrete pad by a crane like piece of plant known as a Matbro (all terrain heavy duty) Telehandler TS350, serial number 77262 with registration number 36354C ('the Telehandler'). (35)This type of plant is required to be item registered and the operator to hold a current National Certificate of Competency to operate this plant. (36)The Telehandler had a lifting chain attached to it which was then attached to a lifting lug on the first column formwork shutter. The first shutter was then lifted by the lifting chain then lifted into place and placed on the concrete pad on one side of the reinforced steel bars by the Telehandler. A worker would then unhook the lifting chain from the shutter which was attached to the Telehandler. A worker would then stand beside the shutter and hold it in position whilst the operator of the Telehandler went to pick up the second piece of the shutter. (37)Anthony Wills, a supervisor for Suncoast states that in forming the columns another method could be utilised which involved an acro prop being placed against the first shutter prior to the lifting chains being unhooked from the lifting lug on the first shutter. (38)The second shutter was then lifted by the chain then lifted into place and placed on the concrete pad on the other side of the reinforced steel bars by the Telehandler. A worker would then attach a bolt to join both sides of the shutters before detaching the chain from the second shutter. The worker would then climb up the shutters and affix and tighten the rest of the bolts on either side of the shutters which held the shutters in place. (39)The column formwork shutter was then plumbed square on the concrete pad. (40)In order to plumb and brace the steel column formwork shutters during the pouring of the concrete and the curing process, telescopic adjustable props, commonly called "acro-props", would be placed against the shutters at four places at approximately 90 apart. (41)Concrete was then poured into the steel column formwork shutter to form a round column. (42)After the concrete had been poured into the steel column formwork shutters, the shutters and acro-props would be adjusted to ensure that the shutters remained plumb and level and would be left in their position for approximately 24 hours, to allow the concrete to cure. (43)Part of the process of column construction required the formworkers stripping the shutters from around the concrete columns that had been poured with concrete on the previous day. Once the concrete had cured, the column formwork shutters would then be stripped from around the columns. (44)The stripping process usually required the involvement of two or three people. (45)The Telehandler was utilised in order to assist with the stripping of the shutters. (46)The Telehandler was utilised to lift the separate halves of the shutter from the formed concrete column. (47)The usual method adopted by Mr Smith and his labourers for column formwork stripping at the Site involved the following steps: The removal of the four acro-props that had been placed against the shutters as part of the plumbing process; a person would climb up the shutters and would remove the bolts on either side of the shutters which held the shutters in place, except two bolts on either side of the shutter which would be left in a loosened position; a person would then climb up the shutters and attach lifting chains to lifting lugs on one half of the shutter. The other end of the lifting chains were attached to the boom of the Telehandler; in the event that there was adhesion between the column formwork shutter and the concrete column after the bolts had been removed and loosened, a pinch bar and hammer were used to manually loosen the half of the column formwork shutter that was attached to the Telehandler by the lifting chains; the two remaining bolts were then removed; in order to lift the shutter the operator of the Telehandler then retracted and raised one half of the shutter and moved it away; the remaining half of the shutter remained in place whilst the first half of the shutter was removed by the Telehandler; Mr Smith and his labourers on occasions adopted a method of securing the remaining shutter by a worker standing beside the shutter and placing one or both hands against the remaining shutter; Suncoast's method was to use an acro-prop to secure the remaining shutter. This was the system taught by Mr Watt to Mr Smith. the operator of the Telehandler then returned and a worker attached the lifting chains to the lifting lug of the remaining shutter by reaching up or climbing partially up the remaining shutter; the operator of the Telehandler then retracted and raised the remaining half of the shutter and moved it away; (48)Mr Tom Furness, a Site Foreman engaged by McConaghy Built states that another method of work observed during the stripping process involved an "acro-prop" being placed on the formwork shutter opposite to the shutter being removed in order to support the freestanding shutter after the first shutter had been removed. However, this was not the method adopted by Mr Smith or his labourers. The incident (49)On 3 April 2008 at approximately 7 am, Mr Smith and Mr Tapping commenced duties involving the stripping of steel column formwork shutters at the Site. (50)The usual operator of the Telehandler, Craig Bingham, an employee of Suncoast, was not available to assist with the task at that time as he had called in sick and was not at work that day. (51)In order to strip the shutters Mr Smith was operating the Telehandler. Mr Smith did not hold a current National Certificate of Competency to operate this plant. (52)Mr Smith had on previous occasions operated the Telehandler at the Site, as a trainee under a training log book. (53)On 3 April 2008, Mr Smith was operating the Telehandler unsupervised. (54)Mr Tapping was assisting Mr Smith with the process of stripping the column shutters. (55)On the morning of the incident, Mr Smith and Mr Tapping had already stripped the shutters from approximately four or five columns. (56)On 3 April 2008 at approximately 9 am, Mr Smith and Mr Tapping commenced the process of stripping a further shutter from a concrete column. (57)The area around the concrete column that Mr Smith and Mr Tapping were about to strip was uneven and sloping with loose dirt around the base of the concrete column. (58)In accordance with the usual process adopted on site for the stripping of the formwork shutters, Mr Tapping climbed up the shutter to remove the connecting bolts, leaving two of the bolts loosened in their original position in order to prevent the shutters from falling. (59)Mr Tapping then climbed up the shutter to attach lifting chains from the Telehandler to the lifting lugs on one half of the shutter. (60)Mr. Tapping then climbed down the shutter and removed the remaining bolts, which held the two halves of the shutter together. (61)The remaining half of the shutter was freestanding and was not supported or propped in its position by an 'acro-prop' or other device such that, the remaining shutter was only held in place by adhesion between the shutter and the concrete column. (62)Once Mr Tapping had removed the remaining bolts Mr Smith used the Telehandler to lift one half of the shutter. (63)Mr Tapping did not stand beside the remaining shutter or place one or both of his hands against the shutter. Instead Mr Tapping then proceeded to turn and walk away from the remaining shutter with his back to the remaining shutter. (64)However, as Mr Smith was in the process of retracting the raised half of the shutter, the remaining half of the column formwork shutter suddenly fell striking Mr Tapping on the head, neck and shoulder. (65)Mr Tapping was given initial first aid on site by the Site's Safety Officer, David Kolega from McConaghy Built. Treatment was subsequently provided by the New South Wales Ambulance Service and NSW Police. (66)Mr Tapping was subsequently transported to Grafton Base Hospital and then to Royal Prince Alfred Hospital. Mr Tapping died of his injuries on 4 April 2008. Investigation of the incident (67)On 3 April 2008, Inspector Jim Allison attended the construction site and made observations contained in a Factual Inspection Report dated 21 April 2008. Attached and marked with the letter "A", is a copy of the Factual Inspection Report of Inspector Allison. (68)During the course of the inspection at the site a number of photographs were taken. Attached and marked with the letter "B", is a copy of the photographs of Inspector Allison dated 3 April 2008. (69)On 10 April 2008, Inspector Steven North and Inspector Allison attended the site for a follow up inspection. Inspector North made observations contained in a Factual Inspection Report dated 20 May 2008. Attached and marked with the letter "C", is a copy of the Factual Inspection Report. Details of systems of work prior to the incident Suncoast (70)At the date of the incident Suncoast had a Site Safety Plan in place for work to be performed on Site by its employees and sub-contractors. (71)The Site Safety Plan required that risk assessments be undertaken in relation to tasks to be performed by its employees and sub-contractors at the Site. (72)Suncoast did not, prior to the incident, undertake a risk assessment with respect to the task of stripping column formwork shutters at the Site. (73)Prior to the incident, Suncoast had contacted another construction company, Oakdale Sydney Constructions, and requested that they assist Suncoast by providing them with a Safe Work Method Statement ('SWMS') for the task of column installation at the site. (74)Victor Karpys, OHS Manager for Oakdale Sydney Constructions was directed to liaise with Suncoast and to provide them with a SWMS. (75)Mr Karpys adapted a SWMS he was developing for Oakdale Sydney Constructions for use by Suncoast. The SWMS developed by Mr Karpys was developed for use with square steel column shutter formwork, where the two halves of the shutters were hinged and were not required to be separately placed or removed from around the columns being constructed. (76)Mr Karpys was unaware that the type of steel column shutter formwork that was to be used by Suncoast to construct the 390 concrete columns was cylindrical unhinged formwork (although there were some square columns also constructed at the site. Mr Karpys did not modify the SWMS for use with cylindrical unhinged steel column shutter formwork. (77)There was limited consultation by Suncoast with its employees or its sub-contractors with regard to the development of the SWMS at the Site. (78)The SWMS for the task of column installation utilised by Suncoast did not detail the method of work required for the task of stripping of the steel column formwork shutters. (79)Suncoast did not any have any other documented procedure in place prior to and at the time of the incident for the stripping of steel column formwork shutters from the concrete columns. (80)Mr Smith had observed persons employed by Suncoast and his labourer Andrew Smith, undertake the procedure in relation to the setting up of the steel shutter column formwork and stripping of the shutters. (81)Suncoast did not provide Mr Tapping any formal, task specific training in the proper and safe method to be utilised for the stripping of steel column formwork shutters. (82)Nor did Suncoast undertake an assessment of the competency of Mr Tapping in undertaking the task of stripping of steel column formwork shutters from the concrete columns. (83)Suncoast did not direct its subcontractors, including Mr Smith, that they must comply with a system of work in relation to the task of stripping of the shutters, which required an acro-prop or other form of support to be put in place to stabalise one half of the shutter whilst the first half was being lifted and removed by the Telehandler. (84)Nor did Suncoast have in place a means by which acro-props or other support methods could be secured to the shutters to prevent their removal or accidental dislodgement during the process of the stripping of the shutters. (85)Suncoast did not have in place a requirement that, as part of the system of work for the stripping of the shutters, persons must be clear of the range in which they could be struck by a falling shutter, prior to the operator of the Telehandler commencing to lift and remove the shutter. (86)Suncoast did not obtain a SWMS from Mr Smith for the task of column installation or stripping on the Site. (87)Due to the failure to provide or obtain SWMS's or formal training in relation to the task of column stripping on the Site, Mr Smith and his labourers devised their own methods of stripping of the shutters. (88)Mr Smith stated that Suncoast did not provide him with any task specific training in respect of the process of stripping of steel column formwork shutters. Mr Smith stated that Suncoast did not provide him with any documented or formal training, but that he picked up the procedure during the six-month period preceding the incident in which he had worked on Site. (89)There is no record of any training provided by Suncoast to Mr Tapping in respect of the process of stripping of steel column formwork shutters. (90)Nor did Suncoast have a system in place to assess whether its subcontractors and their employees were able to competently and safely undertake the task of stripping of steel column formwork shutters. (91)There was only limited supervision provided by Suncoast to subcontractors and their employees. Mr Watt did not monitor Mr Smith and Mr Tapping to see how they were stripping the shutters prior to and on the day of the incident. (92)Suncoast did not have a system whereby there was periodic monitoring of Mr Smith and Mr Tapping to ensure that they were complying with the safe procedures for stripping the shutters. (93)On the day of the Incident, Mr Smith operated the Telehandler unsupervised, in circumstances where he did not hold a current certificate of competency. Mr Smith (94)On commencement of his work at the Site, Mr Smith underwent a general site induction provided by McConaghy Built. (95)During that induction Mr Smith was shown a number of documents including the Suncoast safe work method statement for the task of the construction of steel column formwork shutters, however he was not given any instruction into the contents of the SWMS or a copy of the SWMS to keep. (96)Mr Smith was not given a Safe Work Method statement or other documented procedure for the stripping of steel column formwork shutters from the concrete columns by Suncoast or any one else. (97)Mr Smith was shown the method to be used to construct steel column formwork shutters by employees from Suncoast. (98)Mr Smith picked up the system used at the Site for the stripping of steel column formwork shutters from the concrete columns by observing Suncoast employees and his labourer Andrew Smith undertaking the task. (99)On commencement of Mr Tapping's work at the Site, Mr Smith referred Mr Tapping to Mr Kolega to undertake McConaghy Built's general site induction. (100)Mr Smith did not request that Suncoast or McConaghy Built, provide Mr Tapping with formal task specific training in relation to the proper safe system of work to be utilised for the task of constructing or stripping of the shutters. (101)Mr Smith did not upon Mr Tapping's commencement on site or prior to the time of the incident, provide to Mr Tapping a safe work method statement or other documented procedure for the task of the stripping of steel column formwork shutters from the concrete columns. (102)Mr Smith did not undertake any risk assessment with respect to the task of stripping column formwork shutters at the site prior to the incident. (103)Mr Smith did not provide any documented or formal training to Mr Tapping in respect of the process of stripping of steel column formwork shutters. (104)There is no record of any training provided to Mr Tapping by Suncoast. The only training provided to Mr Tapping was observational, that is Mr Tapping observed how the task was undertaken by others, and then was permitted by Mr Smith to undertake the task himself. (105)Mr Smith did not undertake a formal assessment of Mr Tapping's ability to safely perform the task. (106)The instruction provided by Mr Smith to Mr Tapping in relation to the risks involved in the task of stripping shutters was limited to providing Mr Tapping the verbal instruction to be "aware and be careful" informing him that columns may fall. (107)Mr Smith relied upon Mr Tapping to determine if an acro-prop or other method of support was required to be used to support the freestanding half of the shutter. (108)The system of work adopted by Mr Smith did not require Mr Tapping to be out of the area of any potential fall of the freestanding shutter prior to the other half of the shutter being moved. McConaghy Built (109)McConaghy Built had a Safety Plan that had been prepared by a consultant, Site Safe, which was developed to cover construction activities in New South Wales and Queensland. (110)The Safety Plan had been reviewed by McConaghy Built's lawyers in New South Wales and Queensland. It was also the subject of an internal review by McConaghy Built senior management and staff. (111)The Safety Plan had been reviewed at the commencement of construction at the Site. (112)The Safety Plan was reviewed to consider its adequacy and implementation for the project by McConaghy Built's employees, including the Safety Officer, Mr Kolega, the Construction Manager, Mr Keating, the Project Manager, Mr Kavanagh, and the Site Foreman, Mr Furness. (113)McConaghy Built provided general site induction, training and information to its employees, as well as to sub-contractors and their employees at the Site. The induction dealt with occupational health and safety issues generally. (114)McConaghy Built had a document in place called 'Subcontract Conditions'. This document imposed a number of requirements on its subcontractors including in relation to health and safety. The Subcontract Conditions was applicable to the work being performed by Suncoast at the Site. (115)McConaghy Built had obtained from Suncoast its Site Safety plan. (116)McConaghy Built also received from Suncoast its SWMS for the task of column construction. This was reviewed and accepted for use by Suncoast in performing formwork work on site by McConaghy Built's Site Safety Officer, Mr Kolega. (117)McConaghy Built's Site Safety Officer, Mr Kolega, had a range of skills and experience including several certificates in occupational health and safety from TAFE. However, Mr Kolega had little civil construction specific training or experience. Mr Kolega had little specific training or experience in the scope of work involved in formwork. (118)McConaghy Built in reviewing and accepting for use on the Site Suncoast's SWMS, failed to identify that the SWMS for the task of column construction did not include a section dealing with the safe method of undertaking the task of stripping steel column formwork shutters from around concrete columns. (119)McConaghy Built in reviewing and accepting for use on the Site Suncoast's SWMS, did not consult with Suncoast regarding amending Suncoast's SWMS for the task of column construction to include a section dealing with the safe method of undertaking the task of stripping steel column formwork shutters from around concrete columns. (120)McConaghy Built did not require that Suncoast perform a risk assessment of the work method detailed in its SWMS to ascertain any risks involved and whether there was a safer method available of performing the task. (121)Neither McConaghy Built's OHS Manager or Site Supervisor were aware that the system of work adopted by Mr Smith and his labourers, including Andrew Smith and Mr Tapping for the stripping of steel column formwork shutters around concrete columns did not use an acro-prop or other device to support the freestanding shutter. (122)Neither McConaghy Built's OHS Manager or Site Supervisor were aware that the system of work adopted by Mr Smith and his labourers, including Andrew Smith and Mr Tapping for the stripping of steel column formwork shutters from around concrete columns did not require that persons be clear of the range of the freestanding shutter prior to the operator of the Telehandler commencing to lift the other half of the shutter. (123)Neither McConaghy Built's OHS Manager or Site Supervisor undertook regular spot checks of its sub-contractors records and documentation, to ensure that persons who were operating plant, such as the Telehandler, were being properly supervised or had attained the competency so that direct supervision was unnecessary or that a lesser degree of supervision was appropriate. System of work subsequent to the incident (124)On 3 April 2008 Inspector Allison issued a prohibition notice upon McConaghy Built (148599) and Suncoast (148600) to develop a safe system of work for the stripping of concrete column formwork shutters. (125)In the interim, Suncoast implemented a system using plastic tubing called 'formatube' for concrete column construction that did not involve the use of the steel shutters. This form of construction could not be used where the reinforcing steel was bent. (126)In compliance with this notice, Suncoast devised a SWMS that addressed the task of stripping column formwork shutters. This was prepared in conjunction with McConaghy Built. (127)Suncoast subsequently made engineering changes to the shutters to weld lugs on the shutters to which the acro-prop could be attached to provide greater stability and bracing of the shutter. Co-operation with WorkCover (128)Suncoast and Mr Watt co-operated with WorkCover during the investigation. The defendants' criminal history (129)Suncoast has no prior convictions under Occupational Health and Safety legislation in NSW. (130)Mr Watt has no prior convictions under Occupational Health and Safety legislation in NSW. 7Furthermore, there was made available to the Court as evidence in the proceedings copies of factual inspection reports, a number of photographs, a Safe Work Methods Statement worksheet used by Suncoast prior to the incident and a different version used after the incident, a site safety plan utilised by Suncoast for the construction site and other documentation to which it is not necessary to refer. 8For the defendants, there was tendered into evidence an affidavit of the defendant Mr Watt. He is the sole director of Suncoast and a 50 per cent shareholder. Suncoast undertook formworking work at the construction site commencing in about late 2007 or early 2008. Mr Smith was retained as a subcontractor, as set out in the agreed statement of facts. In his affidavit, Mr Watt said that he was not on site when Mr Tapping was employed by Mr Smith and when he was absent from the site a foreman was present to supervise the work. Mr Watt said that he ensured that on all my jobs, the foremen properly supervise all of the men under their control including subcontractors, no matter how experienced they are, so they do not get complacent. 9Mr Watt gave evidence in the affidavit of the impact that this incident had on him personally and as to tangible support that Suncoast gave to the family of Mr Tapping after the incident. I am satisfied on the basis of the evidence given by Mr Watt that the defendants have expressed genuine contrition and remorse for what occurred. 10The starting point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the offence. On the evidence this was a large construction site. Prior to the incident, Suncoast had constructed and stripped between 250 and 300 columns. Seven columns were stripped and constructed each day using the shutters, which are described in the agreed statement of facts. 11Importantly, Mr Watt, as a representative of Suncoast, had overall control of the formwork being carried out at the construction site. As is made clear in [11] of the agreed statement of facts: he had authority to control and direct the work being undertaken by Suncoast's employees and subcontractors. He had authority to direct what work was to be undertaken on the site. 12The method of forming up the columns, the formwork that was used, and the method of stripping the formwork from the columns were all devised by Mr Watt on behalf of Suncoast. It is inescapable that overall responsibility for the system of work that was used on the construction site resided with Suncoast. The column shutter which was being used was 3.6 metres high, weighed over 100 kilograms and was made of steel. There were no visible means of ascertaining how stable it was once the other half had been removed by the Telehandler. The evidence was that the column shutter was 450mm in diameter. Accordingly, as it stood upright, presumably on a concrete footing, the greatest distance between the shutter edge and the column was 225mm. Of course, because it was curved, there were considerable parts of the edge of the shutter where there was considerably less distance. The prosecutor submitted that the shutter column standing by itself without any support was unstable. I agree. I do not understand the defendant to have submitted otherwise. There is evidence that on some occasions there was adhesion between the inside of the shutter column and the formed column because a hammer was needed to crack it open. However, the inside surface of the shutter column was oiled before the concrete pour to prevent adhesion. In any event, there is simply no evidence about whether or not there was any adhesion in the circumstances of this incident. I shall ignore this factor but proceed on the basis that there was a risk that the shutter column would fall away if not secured in some appropriate fashion, as happened. Furthermore, the size and weight of the shutter column created a serious risk of injury if it struck someone, as occurred tragically in the circumstances of this incident. 13It was agreed between the parties by way of a supplementary fact that in about late October or early November 2007, Mr Watt demonstrated to a number of persons the manner in which he wished the work to be carried out. As part of this demonstration, he left an acro-prop propped against one half of the shutter column while the other half was being taken away. It was placed against the column, presumably underneath one of the protruding edges but not otherwise fixed. 14Whilst I accept that, initially at least, Suncoast did give some attention to informing and instructing persons carrying out formworking work at the construction site, on the evidence this was not followed up in any formal fashion and, on the evidence, no particular instruction was given by Suncoast to Mr Tapping. 15The defendants rely to some extent on the fact that there was supervision provided from time to time both by Mr Watt and also foremen who were working on the construction site. However, the evidence is that Mr Smith did not at any time use an acro-prop to secure the second half of a shutter column once the first half had been removed. If there had been an effective method of supervision, and if Suncoast had been concerned to ensure that the remaining half of the shutter column was secured in some way to prevent it falling, it would have been an easy matter for this to be enforced while work was being performed on site under the supervision of the foremen or Mr Watt. 16The result is that I am able to conclude that the system of work used for the stripping of the shutter columns was inherently unsafe, and that, as occurred after the incident, there were means reasonably available to Suncoast to avoid the risk of injury that this posed. Furthermore, there was a failure on the part of Suncoast to provide information, instruction and training to Mr Tapping and a failure to adequately supervise not only Mr Tapping but also Mr Smith, who engaged Mr Tapping, to ensure that the preferred method of operation was carried out. 17Given all of the circumstances as I have outlined them, and given the obvious and foreseeable risk of injury including the risk of severe injury by reference to the dimensions and composition of the shutter column, the breach by Suncoast must be characterised objectively as a most serious one. 18In assessing penalty, it is also necessary to take into account the general and specific deterrence that a penalty will provide. I propose to take both these matters into account. In considering specific deterrence, I will take into account, on the evidence, that the defendants have taken positive steps after the incident to improve the occupational health and safety processes and procedures which are used in and about the work operations and this ameliorates to some extent the need to take into account specific deterrence. 19There are a number of subjective features that the Court is entitled to take into account in mitigation of the penalty. The defendants entered pleas of guilty at an early stage in the proceedings. They co-operated with the WorkCover Authority of New South Wales in and about its investigation of the incident that gave rise to these proceedings and they have expressed genuine contrition and remorse for what occurred, including providing tangible support for the family of Mr Tapping. 20Mr Watt said that he had been engaged in erecting and stripping columns for approximately the last 20 years. He had never been involved in any significant accident before. Both he and Suncoast have an excellent safety record given that they have no prior convictions and are engaged in work that is of an inherently dangerous nature. 21The prosecutor sought orders for the payment of a moiety and costs, neither of which was opposed. Suncoast Formwork Pty Ltd 22The maximum penalty is $550,000. Having regard to all of the matters to which I have referred, and bearing in mind particularly the serious nature of the offence, which I have found, but taking into account the mitigating factors to which I have referred, I am of the opinion that an appropriate penalty is the sum of $125,000. Gary James Watt 23The maximum penalty is $55,000. Mr Watt is in reality the alter ego of Suncoast. His culpability must therefore equal that of Suncoast. On this basis, an appropriate penalty is the sum of $12,500. Orders 24I make the following orders: 1) Each of the defendants is found guilty of the offence with which it and he is charged and convicted accordingly. 2) I impose a monetary penalty of $125,000 on Suncoast Formwork Pty Ltd and of $12,500 on Gary James Watt, with a moiety in each case to the prosecutor. 3) The defendants are to pay the costs of the prosecutor in an amount assessed in default of agreement in the proportion that the respective penalties imposed upon each of them bears to the aggregate of the penalties so imposed. ********** 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: 14 July 2011