Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector North v Smith [2011] NSWIRComm 144 Hearing dates: 17 October 2011 Decision date: 02 November 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1) The proceedings brought against the defendant under s 8(1) of the Occupational Health and Safety Act 2000 are dismissed. 2) The defendant, Edward John Smith, is found guilty of the offence under s 9 with which he is charged and convicted accordingly. 3) A monetary penalty of $5,000 is imposed on the defendant, Edward John Smith, with a moiety to the prosecutor. 4) Costs are reserved with liberty to apply. If the parties are able to reach agreement on costs, orders will be made in chambers reflecting that agreement. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 9 of the Occupational Health and Safety Act 2000 - early guilty plea - appropriate penalty - objective seriousness - inadequate safety procedures - relative culpability - no prior convictions -cooperation with the WorkCover Authority - contrition and remorse - orders made - costs reserved Legislation Cited: Occupational Health and Safety Act 2000 - s 9 Cases Cited: Inspector North v Watt and Suncoast Formwork Pty Ltd [2011] NSWIRComm 93 Inspector Ochoa v Williams [2010] NSWIRComm 93 Category: Principal judgment Parties: Inspector Steven North of WorkCover Authority of New South Wales (Prosecutor) Edward John Smith (Defendant) Representation: Mr C Magee of counsel (Prosecutor) Mr M Boulton of counsel (Defendant) Legal Group, WorkCover Authority of New South Wales (Prosecutor) McNamara James & O'Connor Solicitors (Defendant) File Number(s): IRC 235 of 2010 Judgment 1The prosecutor, Inspector Steven North of the WorkCover Authority of New South Wales, has charged the defendant, Edward John Smith, with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") and, in the alternative, with a breach of s 9 of that Act. The defendant pleaded guilty to a breach of s 9 of the Act and the prosecutor indicated that it did not intend pursuing the alternative charge under s 8(1). 2Section 9 is in the following terms: 9 Duties of self-employed persons A self-employed person must, so far as is reasonably practicable, ensure that people (other than the employees of the person) are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work. 3The charge to which the defendant pleaded guilty is that, being a self-employed person on 3 April 2008 at premises in Grafton, he failed to ensure that [P]eople, other than his employees, were not exposed to risks to their health or safety arising from the conduct of his undertaking while they were at his place of work, and in particular, Lee Michael Tapping ... . 4The particulars of the charge are: (a) The defendant is a self-employed person; (b) The defendant conducted an undertaking of the construction and stripping of steel column formwork shutters at the Site; (c) The Site was the defendant's place of work; (d) Mr Tapping was at the defendant's place of work; The particulars of the risk are that: (e) 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 shutters 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: (f) The defendant failed to provide a safe work method statement for persons undertaking 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 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. (g) 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 he failed to undertake measures as follows: (i) Ensuring that a means of support such an acro-prop or other propping 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; (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. (h) The defendant failed to provide information, instruction and training to persons other than his employees in respect of the process of stripping of steel column formwork shutters at the Site in that he failed to undertake measures as follows: (i) Provide task specific information to 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 for the task of stripping of steel column formwork shutters; (iii) Provide documented, formal training to Mr Tapping in respect of the process of stripping of steel column formwork shutters and/or requested the formwork contractor at the Site to provide such training for Mr Tapping; (iv) Undertake a formal assessment of Mr Tapping's ability to safely perform the task of stripping of steel column formwork shutters; (v) Inform Mr Tapping of the risk of the unsecured shutters falling; (vi) Inform Mr Tapping that he should always use at least 1 acro-prop or other support, to support the freestanding shutter during the stripping process. (i) 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 Tapping during the stripping process to ensure that he used at least 1 acro-prop or other propping or securing device, to support the freestanding shutter. As a result of the defendant's failures persons who were not his employee, and in particular Lee Michael Tapping, were placed at risk of injury. As a result of the defendant's failures a person who was not his employee, and in particular Lee Michael Tapping, suffered fatal injuries. 5For the prosecutor, there was tendered into evidence an agreed statement of facts and supporting documentation including factual inspection reports, photographs and a Safe Work Method Statement worksheet. 6The agreed statement of facts 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. EDWARD JOHN SMITH (DOB: 13 May 1973) of 329 North Street, Wooli, in the State of New South Wales ("the defendant"), is and was at all material times a sole trader. Background 3. At all material times the defendant was a qualified carpenter, who was a sole trader. The defendant obtained his business registration in about 2002. 4. 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 ("the site") and was the controller of the site. 5. 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. 6. At all material times, Suncoast Formwork Pty Ltd ("Suncoast") was contracted by McConaghy Built to complete formwork at the site including the construction, erection and dismantling of formwork. 7. Suncoast engaged a range of subcontractors to undertake works in relation to the formwork at the site in addition to its direct employees. 8. Suncoast entered into a subcontract arrangement with the defendant in or about October 2007. Pursuant to the sub-contract arrangement the defendant 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. 9. The work primarily performed by the defendant at the site was to set out and construct the formwork for the pads for the columns, but from time to time he did set up the column formwork shutters and did strip them. 10. The removal of the shutters, when he performed that work from time to time, was part of the defendant's undertaking, as it fell within the terms of the sub contracting arrangement he had with Suncoast. 11. The sub-contract arrangement between Suncoast and the defendant required the services of a labourer to be provided to assist the defendant in performing some of his formwork tasks at the Site. 12. The defendant provided Suncoast with a monthly Invoice for the work that was performed by him and the formwork labourer at the site. The rate charged to Suncoast by the defendant included the hourly rate for the formwork labourer. 13. Initially, the formwork labourer assisting the defendant was Mr Andrew Smith. 14. The defendant was under the overall direction and supervision of Suncoast, its director Mr Gary Watt and supervisors in relation to performing work associated with formwork on the site. He was also subject to supervision from time to time by McConaghy Built's supervisors, who were on the site. 15. Lee Michael Tapping ('Mr Tapping') was a 33 year old male. 16. In or about March 2008, Mr Tapping approached the defendant and enquired as to whether he had any work available. 17. The defendant approached Gary Watts (Mr Watts) of Suncoast and advised him of Mr Tapping's interest in work and was informed by Mr Watt to "put him on". 18. The defendant informed Mr Tapping that a labourer was required to undertake tasks in relation to the construction of formwork at the Site and that he could commence work on the Site. 19. In about March 2008, Mr Tapping commenced undertaking formwork labouring duties associated with the construction, erection and dismantling of formwork at the Site. 20. The defendant was responsible for the direction and supervision of Mr Tapping when they were working together erecting and stripping the formwork column shutter system. However from time to time Mr Tapping was also subject to direction, training and supervision by employees of. The defendant did not have total control over the activities of Mr Tapping at the Site. 21. The defendant'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. 22. At the date of the incident, Mr Tapping had not received any payment for labouring work performed on the site but subsequent to the incident the defendant received those monies from Suncoast and placed under the door of Mr Tapping's mother, Susan Smith, an envelope, a letter and the outstanding monies owed to Mr Tapping for work done at the site. 23. At all material times, Mr Gary Watt was a Director of Suncoast. In this role Mr Watt's responsibilities included overseeing the formwork element of the construction project, liaising with the Principal Contractor, McConaghy Built, and Suncoast's subcontractor on the site. He had authority to direct what work was to be undertaken on the site. The work being performed 24. 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. 25. 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. 26. The column formwork shutters were owned by Suncoast. They were designed by Mr Watt in consultation with an engineering company, KTR Engineering. 27. 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. 28. 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. 29. Mr Watt from Suncoast would give directions to formworkers, including the defendant and Mr Tapping, as to the direction in which they were to set up formwork columns for pouring concrete. 30. 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. 31. At the date of the incident approximately 300 of the concrete columns had been constructed at the site 32. 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'). 33. 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. However trainee drivers were permitted to operate this type of plant under the supervision of a competent person, keeping account of their driving hours in a logbook until they qualified for their own certificate of competency. 34. 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 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. 35. 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 of the first shutter. 36. 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. 37. The column formwork shutter was then plumbed square on the concrete pad. 38. 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. 39. Concrete was then poured into the steel column formwork shutter to form a round column. 40. 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. 41. Part of the process of column construction required the form workers 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. 42. The stripping process usually required the involvement of two or three people. 43. The Telehandler was utilised in order to assist with the stripping of the shutters. 44. The Telehandler was utilised to lift the separate halves of the shutter from the formed concrete column. 45. The method adopted by the defendant and Mr Tapping when they were together performing 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; the defendant 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; The operator of the Telehandler then returned and a worker attached the lifting chain to the lifting lug on 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. 46. No one had trained or instructed the defendant in this procedure. He had observed it by watching other workers perform this task in that way. 47. 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 free-standing shutter after the first shutter had been removed. However, this was not the method adopted by the defendant or his labourers. The incident 48. On 3 April 2008 at approximately 7 am, the defendant and Mr Tapping were directed to perform stripping of steel column formwork shutters at the site, because the usual operator of the Telehandler, Craig Bingham, an employee of Suncoast, was not available to perform the task at that time. 49. In order to strip the shutters the defendant was operating the Telehandler. The defendant did not hold a current National Certificate of Competency to operate this plant. The defendant had been instructed in the use of the Telehandler by Mr Bingham. 50. The defendant had on previous occasions operated the Telehandler at the site, as a trainee under a training log book. 51. On 3 April 2008, the defendant was not being supervised as he was operating the Telehandler. 52. Mr Tapping was assisting the defendant with the process of stripping the column shutters. 53. On the morning of the incident, the defendant and Mr Tapping had already stripped the shutters from approximately four or five columns. 54. On 3 April 2008 at approximately 9 am, the defendant and Mr Tapping commenced the process of stripping a further shutter from a concrete column. 55. The area around the concrete column that the defendant and Mr Tapping were about to strip was uneven and sloping with loose dirt around the base of the concrete column. 56. 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 57. Mr Tapping then climbed up the shutter to attach lifting chains from the Telehandler to the lifting lugs on one half of the shutter. 58. Mr. Tapping then climbed down the shutter and removed the remaining bolts, which held the two halves of the shutter together. 59. 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. 60. Once Mr Tapping had removed the remaining bolts the defendant used the Telehandler to lift one half of the shutter. 61. Mr Tapping initially supported the remaining shutter by placing one hand on the shutter. Shortly after the defendant commenced lifting the first shutter, Mr Tapping withdrew his support for the remaining shutter and then proceeded to turn and walk away from the remaining shutter with his back to the remaining shutter. 62. However, as the defendant 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. 63. 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. 64. Mr Tapping was transported to Grafton Base Hospital and then to Royal Prince Alfred Hospital. Mr Tapping died of his injuries on 4 April 2008. 65. Subsequent inspection of the concrete column revealed black and red scuff marks running the length of the column that was being stripped at the time of the incident. The scuff marks appeared to be where the two halves of the column formwork shutter were bolted together. Investigation of the incident 66. 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. 67. 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 "B", is a copy of the Factual Inspection Report. 68. During the course of the inspections at the site a number of photographs were taken. Attached and marked with the letter "C", is a copy of the photographs of Inspector Allison dated 3 April 2008 and 10 April 2008. Details of systems of work prior to the incident The defendant 69. On commencement of his shift at the Site, the defendant underwent a general site induction provided by McConaghy Built. 70. During that induction, the defendant 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. 71. The defendant was not given a Safe Work Method Statement or other documented procedure for stripping of steel column formwork shutters from the concrete columns by Suncoast or anyone else. 72. The defendant and Mr Tapping were shown the method to be used to construct steel column formwork shutters by employees from Suncoast. 73. The defendant 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. 74. On commencement of Mr Tapping's work at the Site, the defendant referred Mr Tapping to Mr Kolega to undertake McConaghy Built's general site induction. 75. The defendant 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. He assumed that Mr Tapping would be instructed and trained by Suncoast and McConaghy Built in all tasks that he was expected to perform. 76. Upon Mr Tapping's commencement on site or prior to the time of the incident, the defendant did not provide to him a written safe work method statement or other documented procedure for the task of the stripping of steel column formwork shutters from the concrete columns. 77. The defendant did not provide any documented or formal training to Mr Tapping in respect of the process of stripping of steel column formwork shutters. 78. The defendant did not undertake any formal risk assessment with respect to the task of stripping column formwork shutters at the site prior to the incident. 79. 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 the defendant to undertake the task himself. 80. The defendant did not undertake a formal assessment of Mr Tapping's ability to safely perform the task. 81. The instruction provided by the defendant 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. 82. As there was no safe work method statement for the task provided to him, the defendant adopted the way of completing the task that he had observed. 83. The system of work utilised by the defendant involved removing all of the bolts which held the two pieces of the shutter together, apart from two bolts. 84. One employee then climbed up the shutters and chains were then attached to a lifting lug on one half of the shutter and to the Telehandler. A pinch bar and hammer were then used to loosen the half of the shutter that was attached to the Telehandler by the lifting chains. 85. The system used by the defendant did not require that the freestanding half of the shutter be propped or otherwise supported to prevent it from becoming unstable and falling, during the loosening process or whilst the first half was being lifted and removed by the Telehandler. 86. The system used generally required one person putting a hand on the free-standing shutter whilst the other shutter was being removed by the Telehandler. This is how the defendant had observed the task performed by other workers on the site. 87. The defendant relied upon Mr Tapping to determine if an acro-prop or other method of support was required to be used to support the free-standing half of the shutter. 88. The system of work adopted by the defendant 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. 89. After the first shutter was removed the Telehandler would return and one employee would then climbed up the remaining shutter and the chains were then attached to a lifting lug on the remaining half of the shutter and to the Telehandler. Suncoast 90. The SWMS provided by Suncoast for the column installation 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. 91. However, the type of column shutter form work 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). Suncoast did not modify the SWMS for use with cylindrical unhinged steel column shutter formwork. 92. There was no consultation by Suncoast with the defendant with regard to the development of the SWMS at the site. 93. 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. 94. 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. 95. Suncoast did not provide the defendant or Mr Tapping any formal, task specific training in the proper and safe method to be utilised for the stripping of steel column formwork shutters. 96. The defendant 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. 97. Suncoast did not undertake an assessment of the competency of the defendant or Mr Tapping to undertake the task of stripping of steel column formwork shutters from the concrete columns. 98. Suncoast did not direct its subcontractors, including the defendant or Mr Tapping, that they must comply with a system of work in relation to the task of stripping of the shutters, which required the use of an acro-prop or other forms of support for the free standing shutter whilst the first half was being lifted and removed by the Telehandler. 99. 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. 100. 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. 101. Suncoast did not obtain a SWMS from the defendant for the task of column installation or stripping on the site. 102. Due to the failure to provide or obtain SWMS's or formal training in relation to the task of column stripping on the site, the defendant and Mr Tapping copied methods of stripping of the shutters commonly used by Suncoast employees. 103. The defendant stated that Suncoast did not provide him with any task specific training in respect of the process of stripping of steel column formwork shutters. The defendant 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. 104. 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. 105. 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. 106. There was only limited supervision provided by Suncoast to subcontractors and their employees. Neither Mr Watt nor any other worker in a supervisory capacity on the Site monitored the defendant and Mr Tapping to see how they were stripping the shutters prior to and on the day of the incident. 107. Suncoast did not have a system whereby there was periodic monitoring of the defendant and Mr Tapping to ensure that they were complying with the safe procedures for stripping the shutters. 108. On the day of the incident Suncoast permitted the defendant to operate the Telehandler when he was not being directly supervised, in circumstances where he did not hold a current certificate of competency. 109. Suncoast did not take steps to assess whether the defendant had obtained sufficient competency in operating the Telehandler, to determine whether he required a lower level of supervision, or no longer required direct supervision. 110. Suncoast did not require the defendant to obtain his qualifications to operate the Telehandler. McConaghy Built 111. Neither McConaghy Built's OHS Manager or Site Supervisor's 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 112. 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. 113. 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. 114. 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. 115. 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 116. The defendant co-operated fully with WorkCover during the investigation, and also gave sworn evidence in the coronial proceedings. The defendant 's criminal history 117. The defendant has no prior convictions under Occupational Health and Safety legislation in NSW. 7The starting point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the offence. There can be no doubt that the circumstances in which the defendant was carrying out work assisted by Mr Tapping in the removal of the shutters was dangerous. This is especially so given the dimensions and weight of the shutters and the fact that the remaining shutter was not secured in any way after its counterpart had been removed from the poured column. The system was inherently dangerous. The defendant did not contend to the contrary. The defendant's breach must be regarded, in all the circumstances, as serious. 8By his plea of guilty the defendant has conceded each of the particulars of the charge brought against him. It is not necessary that I deal with them in any detail, because the breach of the particulars is clearly established by the evidence consisting of the agreed statement of facts. 9The defendant gave evidence in the proceedings. He said that he was adversely affected by the incident and was unable to work for six months. His reaction to the incident was exacerbated by the fact that Mr Tapping was a close family friend whom he had known all his life. It was he who had introduced Mr Tapping onto the construction site in order to provide paid work for him. Following the incident, the defendant became depressed, was prescribed medication and received treatment from a psychologist for two years. 10After the defendant was able to return to work, he initially secured work on a casual basis as an employee and now works fulltime as a carpenter erecting sheds. 11The defendant has contacted Mr Tapping's mother and brother and has, after time, been able to resume a relationship with them. However, Mr Tapping's father is still angry with him, although the defendant would like to "make my peace with him". 12The defendant said that initially after the incident he was "in denial" in ascribing any blame to himself. This was because he was merely doing, at the time, what he had been shown to do by Suncoast Formwork personnel and had stripped columns using the same method many times previously without any incident. He said that he now accepts that he should have done something to remedy a situation which he now acknowledges was unsafe. 13The defendant said that he was genuinely sorry for what happened and regretted the incident. He has ceased undertaking any commercial work and will never undertake that work again. 14The defendant is now aged 38. 15The prosecutor submitted, appropriately, that in assessing the culpability of this defendant and in considering the objective seriousness of the offence, the Court should take into account the substantial role performed by Suncoast Formwork in devising and implementing the method of work for the construction of the formwork and the stripping of the columns. The prosecutor conceded, again appropriately, that the culpability of this defendant was less than that of Suncoast Formwork, which was a specialist formwork subcontractor engaged to complete formwork at the site. Furthermore, as the prosecutor submitted, the formwork shutters had been designed at the instigation of Suncoast Formwork and were owned by them. I accept these submissions and will apply them in the assessment of the penalty. 16In assessing penalty, I shall also take into consideration the deterrent effect that the imposition of a penalty will provide both generally within the construction industry and particularly in regard to this defendant. In terms of specific deterrence, however, I take into account that the defendant now works as an employee and, on his evidence, will continue to do so, eschewing the performance of any large commercial work. To this extent, the specific deterrent effect may be mitigated. 17There are a number of subjective factors that the Court is entitled to take into account when determining penalty, and they were not controversial. The defendant pleaded guilty at an appropriately early opportunity, he co-operated fully with the WorkCover Authority of New South Wales in and about its investigation of the incident, and he has expressed contrition and remorse for the incident. I shall take these matters into account when assessing penalty to the maximum appropriate extent. Some evidence was given of the defendant's assets and income, but no application was made that these matters should be taken into account in assessing penalty. 18The prosecutor sought orders for the payment of a moiety and for costs, neither of which was opposed. 19I propose to reserve the question of costs and to grant liberty to apply. This is based partly on the fact that the prosecutor's costs of these proceedings need to be dissected from proceedings taken against other defendants arising out of the same incident. Furthermore, the reserving of costs will enable the parties to consider my judgment given in Inspector Ochoa v Williams [2010] NSWIRComm 93, the effect of which was to determine that costs should not be disproportionate to the amount of any penalty given. 20I am satisfied on the basis of the evidence given in the proceedings that it is appropriate to accept the defendant's plea of guilty to the charge brought against him and to proceed to convict him accordingly. 21Finally, I should note that in Inspector North v Watt and Suncoast Formwork Pty Ltd [2011] NSWIRComm 93, I imposed a monetary penalty of $125,000 on Suncoast Formwork Pty Ltd and of $12,500 on Gary James Watt. Those proceedings arose out of the same incident, the subject of these proceedings. I found that the culpability of Mr Watt was equivalent to that of Suncoast Formwork Pty Ltd. The same maximum penalty applies to each of these persons, namely $55,000. Having regard to the matters to which I have referred, I am of the opinion that an appropriate penalty to impose upon this defendant is $5,000. Orders 22I make the following orders: 1) The proceedings brought against the defendant under s 8(1) of the Occupational Health and Safety Act 2000 are dismissed. 2) The defendant, Edward John Smith, is found guilty of the offence under s 9 with which he is charged and convicted accordingly. 3) I impose a monetary penalty of $5,000 on the defendant, Edward John Smith, with a moiety to the prosecutor. 4) Costs are reserved with liberty to apply. If the parties are able to reach agreement on costs, I will make orders in chambers reflecting that agreement. ********** 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: 02 November 2011