Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Cooper v Bell Scaffolding Pty Ltd [2011] NSWIRComm 157 Hearing dates: 18 October 2011 Decision date: 25 November 2011 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: (1) The defendant is found guilty of the offence charged under s 8(2) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $120,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Offence under s8(2) of the Occupational Health and Safety Act 2000 - Plea of guilty - Sentencing - Incomplete construction of scaffolding - Risk of falling through an open void in scaffolding - Injured worker fell 12 - 14 metres through the void - Objective and subjective factors considered - Reasonable foreseeability - Contribution of the defendant to the creation of the risk where there were multiple offenders - Parity - Fine imposed - Costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123; (2008) 182 IR 124 Cahill v New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201; (2008) 182 IR 231 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd [1999] NSWIRComm 353; (1999) 92 IR 8 Inspector Cooper v Allied Industrial Engineering Limited [Company No. 624453] [2011] NSWIRComm 131 Inspector Cooper v Visy Pulp and Paper Pty Ltd [2011] NSWIRComm 136 Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 Inspector Wilkie v Anstee (No. 2) [2007] NSWIRComm 20 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) [1999] NSWIRComm 343; (1999) 90 IR 464 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Morrison v Powercoal Pty Ltd [2003] NSWIRComm 342; (2003) 130 IR 364 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Stambolis [2006] NSWCCA 56 Workcover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25; (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 WorkCover Authority of NSW v ACI Operations Pty Ltd [1994] NSWIRComm 167; [1994] NSWIRC 11 Category: Principal judgment Parties: Inspector Stephen Cooper (Prosecutor) Bell Scaffolding Pty Ltd (Defendant) Representation: Mr C Magee of counsel (Prosecutor) Mr J Glissan QC (Defendant) WorkCover Authority of New South Wales (Prosecutor) Doyles Construction Lawyers (Defendant) File Number(s): IRC 455 of 2010 Judgment 1This matter concerns the prosecution and sentencing of Bell Scaffolding Pty Ltd ("Bell" or "the defendant") by Inspector Stephen Cooper of the WorkCover Authority of New South Wales. The defendant was charged with an offence under s 8(2) of the Occupational Health and Safety Act 2000 ("OHS Act") in relation to an incident that occurred on 5 July 2008 when Mr Xavier Nugent, an employee of Delter Services Pty Ltd ("Delter"), fell approximately 12 to 14 metres from one scaffolding platform to another in a digester vessel located in a pulp and paper mill owned and operated by Visy Pulp and Paper Pty Ltd at 436 Gadara Road, Tumut, New South Wales. 2Mr Nugent sustained head trauma with subsequent memory loss, facial lacerations, soft tissue injuries to his left hand and shoulder, and a fractured right radius resulting in the insertion of two metal plates and a bone graft. Mr Nugent also experienced psychological injury as a result of the incident and had difficulty sleeping. Mr Nugent returned to work on restricted duties on 15 October 2008, however, he suffered another work related injury whilst at another site and whilst he was in the employ of Delter. Mr Nugent recovered from that injury, however due to a downturn in the industry, commenced a traineeship in another field. 3It was alleged in the charge that the defendant failed to: [E]nsure by its acts or omissions as particularised below, that persons not in its employment and in particular, Xavier Francis Nugent, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while at the defendant's place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000. 4The defendant pleaded guilty to the charge and in doing so the defendant accepted that it failed to: (i) provide and maintain a safe system of work for the installation and use of scaffolding in the digester. (ii) complete the scaffold deck known as Work Deck 5, in accordance with its policies and compliance standards. (iii) cover and secure the void area of approximately 430 mm between the inner wall of the digester and the deck of the scaffold work platform on Work Deck 5, to prevent persons or materials from falling through the scaffold work deck. (iv) provide a railing or other barrier to prevent persons accessing the void area of approximately 430 mm between the inner wall of the digester and the deck of the scaffold work platform on Work Deck 5. (v) install or attach an 'incomplete scaffold' 'scaftag' or sign at the digester access area to the mid level lower/hanging scaffold and at the access to Work Deck 5, warning persons that the scaffold was incomplete and not safe to work upon. (vi) install or attach 'scaftags' or signs at all the digester access areas to internal scaffolding to indicate the status of the scaffolding for use by persons. (vii) undertake an inspection by a Supervisor or Safety Manager of the internal scaffolding in the digester to ensure that the scaffolding work was completed, and was safe to permit persons to utilise the scaffolding. (viii) undertake the completion of a 'scaffold inspection checklist' to ensure that all scaffolding was completed and was safe to permit persons to utilise the scaffolding, prior to advising Visy and/or contractors that they could commence utilising the scaffolding within the digester. (ix) implement a documented system of inspection such as a 'scaffold handover certificate' to Visy advising, that all scaffolding was completed and was safe to permit persons to utilise the scaffolding, prior to advising Visy and/or contractors that they could commence utilising the scaffolding within the digester. (x) require that a Supervisor or Safety Manager be required to be the holder of a work permit, and be required to complete and return the work permit on the completion of the scaffolding and prior to authorising any work to commence in the digester utilising the scaffolding. (xi) delineate whose responsibility it was to check or certify the completion of the scaffolding, prior to 'signing off' on the work permit cancellation and the permitting of persons to perform work from the scaffolding in the digester. Agreed statement of facts 5The circumstances that led to the charge being laid against the defendant were fully explained in an Agreed Statement of Facts tendered by the prosecutor. 6The defendant undertook the design, erection, modification and removal of scaffolding. Mr Peter Bellden was a director and a senior company representative of the defendant. 7The digester at Visy's Tumut plant was a large silo type structure, used for processing raw wood chip pulp and paper waste at the premises. The digester was approximately 60 metres high and 5.5 metres in diameter. It had an external curved metal framework, with stairs and landings located at regular intervals from the ground to the top. Access hatches approximately 600mm in diameter allowed access to the internal parts of the digester. 8In 2008, Visy planned to undertake an annual 'Major Shut Down' (MSD) of operations at the premises. As part of the 2008 MSD, maintenance and upgrading of the digester was planned to take place. Visy contracted various companies to undertake work in and around the digester in relation to the maintenance and upgrade during the MSD, including DME Engineering Services Pty Ltd ("DME"), a specialist engineering company. Allied Industrial Engineering Ltd (NZ) ("AIE") was engaged by DME to coordinate the planning and scheduling of upgrading work on the digester during the planned 2008 shutdown and in particular, to undertake the upgrade work of replacing the screens located inside the digester. DME engaged Delter to provide skilled and unskilled labour for the work at the site during the shutdown. Delter primarily undertook commercial plumbing work, and specialised in servicing industrial clients, such as Visy. Delter was a small family company. Mr Peter Nugent was a director and General Manager of Delter. 9Delter employed Xavier Nugent as a Trades Assistant. He had been working for Delter for approximately five months part time, and two weeks full time at the date of the incident. 10Mr Bellden's role and responsibilities as a director for the defendant included responsibility for logistics and operations for industrial facilities that required scaffolding. Mr Bellden had qualifications as an Advanced Scaffolder, and confined spaces training and working at heights accreditation. He was responsible for the overall coordination of activities for the defendant at the Visy site during the MSD including for the tasks relating to scaffolding for the maintenance and upgrading of the digester. 11On or about 9 May 2008, the defendant was contracted by Visy to carry out the general scaffolding requirements for the annual MSD of the VPP9 plant (Visy's mill was also known as the "VPP9 plant"). This included the provision of sufficient scaffolders and scaffolding to meet Visy's requirements for the MSD. As part of its contract with Visy, the defendant was also to provide scaffolders for the maintenance and upgrading of the digester, who were to be available to modify or adjust any scaffolding in the digester. 12In order to upgrade the digester a purpose built scaffold was required for inside the digester to facilitate access to the different levels of the digester. The defendant had previously designed, manufactured, erected and dismantled the purpose built scaffolding for use internally in the digester for Visy. Visy had previously purchased the scaffolding system from the defendant and it was retained by Visy for annual use. 13The Agreed Statement described the digester scaffold: The scaffolding system provided by Bell for the digester vessel consisted of a modular system of manufactured steel planks and supporting brackets, which incorporated a series of curved working platforms. The curved planks were custom fitted to the circumference walls of the digester. The work decks were designed so that custom designed curved boards would meet the curved inner wall of the digester leaving an equal gap of approximately 100mm around the wall of the digester. The digester vessel scaffolding could be configured to suit the specific purposes of the type of maintenance and upgrading of the digester that was to be undertaken. The digester vessel scaffolding could also be modified or reconfigured once erected inside the digester vessel as required. Bell consulted with Visy and AIE as to the nature of the work to be performed as well as the access and clearances required for the scaffolding in the digester. AIE provided Bell with information regarding the work that was to be undertaken from the scaffolding and details of the respective loads that the scaffolding would be required to take. The access, strength and clearance requirements of the scaffolding for the tasks to be conducted by AIE in replacing the screens had been the subject of discussion and consultation between Visy, AIE and Bell, over a period of time prior to the shutdown. Bell prepared scaffold design plans so that there were work platforms located in appropriate areas within the digester and which were structurally able to deal with the respective loads that the scaffolding would be required to take. Bell representatives attended a number of meetings in 2008 with Visy, DME and AIE regarding the digester upgrading and maintenance program for the 2008 Shutdown. At these meetings drawings of the particular configuration of the digester vessel scaffolding were provided by Bell. Visy, DME and AIE provided input into the proposed configuration for the scaffolding to be installed in the Digester. Throughout early to mid 2008, Bell were also involved in correspondence with AIE regarding the modification of the plans for the scaffolding to be installed in the Digester. The final scaffold design devised by Bell allowed for four sections of scaffolding. Each section had a deck for access from an access hole in the digester and then had a number of decks including work decks. The sections included: a top level scaffolding; a mid level upper scaffold; a mid level lower/hanging platform scaffold; and a base level of scaffolding. The top level scaffolding was constructed off metal beams, or support needles, located inside the digester. The mid level upper scaffold was also constructed off metal beams, or support needles, located inside the digester. The mid level lower/hanging platform scaffold was constructed beneath the same support needles as the mid level upper scaffold. The base level of scaffolding was to be constructed off the floor of the digester. The design devised by Bell for the hanging platform was not specified on the plan it provided to Visy, DME and AIE. The design of the scaffolding devised Bell, including the hanging platform, had not been erected previously by Bell for maintenance work carried out inside the digester on other occasions. 14Visy had in place a system of work that required work permits to be issued for: a. isolation of plant and equipment; b. any work that: i. would potentially impact on a process; or ii. bring personnel into contact with any process; or iii. involved confined spaces or work at heights. 15The permit system was described in the Agreed Statement: The permits were individually numbered and set out specific conditions for the work including the work location, equipment to be accessed, description of the work (scope) and duration of the permit. The work permits were required to be signed off and handed over to the next crew at the end and commencement of each shift. As part of this system of issuing work permits, Visy required a number of other documents to be provided relating to the activity before it would issue a work permit. These included 'Job Safety and Environment Analysis' ("JSEA") documents, and when necessary other permits such as 'confined space entry' permits, 'hot work' permits, etc. Under Visy's system a work permit was not to be issued until the authorised Visy operator was satisfied that all of the operational and documentary requirements had been met. Members of the work crews who were to undertake the work permitted under a work permit were required to sign on to the work permit prior to starting work and sign off when they were finished their work. Where the work extended over more than one work shift/day, permits were required to be signed over, where the work supervisor changed, to a new permit holder. Under Visy's system, once the work to be performed under the work permit had been completed, the permit holder was required to sign off on the work permit and return it to an authorised operator. 16The Agreed Statement described Visy's requirements for scaffolding: Part of Visy's system of work in relation to scaffold used at the premises required its scaffolding contractors to utilise a system whereby a 'scaftag' would be posted on a completed scaffold as a means of indicating that the scaffold was safe to use. Mr Bellden understood that the Visy System required that a red 'scaffold incomplete - do not use' tag be attached to any incomplete scaffold, or red-and-white barricading tape applied over areas where access was not permitted. Whilst Visy's policy in relation to scaffolding required the posting of a scaftag on all scaffolding as a means of identifying completed and safe to use scaffolding to other persons working on the site, it did not provide for a means of ensuring that a scaftag had actually been attached prior to permitting persons to commence work utilising the scaffold. Visy's system relied upon the scaffolder ensuring the tags were completed and posted on the scaffold. It also relied upon persons intending to utilise the scaffold to check that the tags were in place before using the scaffold. Visy's system did not require it to check that the tags had in fact been attached. Visy's system did not require documented proof or certification that either the tags had been attached or that the scaffolding was complete. It relied upon verbal assurances from the scaffolder. At that time Visy's system of work did not require a 'scaffold handover certificate' to be provided certifying that the scaffolding was complete and safe for use. Visy's system did not clearly delineate whose responsibility it was to check or certify the completion of the scaffolding. 17On 3 July 2008 Mr Chris Carmody, a Production Engineer employed by Visy issued a work permit (Work Permit #A22970) for the erection of the internal scaffolding to Bell's Safety Manager, Mr Rick Nelson. A JSEA was prepared by the defendant dated 3 July 2008 in respect of Work Permit #A22970 for the task of erecting the scaffold. Mr Bellden was responsible for completing the section of the JSEA entitled "Approved by Manager". Mr Bellden did not sign the JSEA prepared by the defendant. 18On 3 July 2008, the defendant commenced the erection of the internal scaffolding in the digester pursuant to Work Permit #A22970. The defendant commenced with the installation of the top-level scaffolding. This was to be followed by the mid level scaffolding in two phases, upper middle scaffold and then the lower/hanging platform suspended beneath support needles located inside the digester. The defendant employed Mr Christopher Wragg as a foreman. He held an advanced scaffolder's ticket. He was leading the team of scaffolders who erected the scaffolding in the digester. Additional work was required to be completed before the lower scaffold platforms could be installed in the digester, and the scaffolding works were delayed. Approximately half a day was lost due to the delay. As a result, the scaffolding inside the digester was not completed by the estimated time of 6.00 pm on 3 July 2008. Work Permit #A22970 was not returned to Visy by Bell Scaffolding on 3 July 2008. 19Mr Jamie Osgood, Production Engineer, issued a work permit from Visy to DME on 3 July 2008 (Work Permit #A22977). The permit was issued to Mr Leon Carrington, a Supervisor from AIE. This work permit permitted AIE and the contractors retained by DME to commence work in relation to the removal of screens inside the digester. This task involved workers utilising the upper level scaffolding that had been completed inside the digester vessel. 20Work Permit #A22977 was issued despite Work Permit #A22970 for the construction of the scaffolding inside the digester not having been returned. Visy had not received any written verification that the scaffolding inside the digester was complete and safe for use before Work Permit #A22977 was issued to Mr Carrington. 21Neither Mr Osgood nor any one else from Visy inspected the digester or the scaffolding to ensure that the required 'scaftag' had been affixed to the scaffolding certifying the scaffold was complete and safe for use prior to issuing Work Permit #A22977. 22The Agreed Statement continued: The work was to be carried out by AIE and the contractors retained by DME on 3 July 2008 was to take place in the upper and lower zones of the digester only and the area was accessed at both a higher and lower level. The work on 3 July 2008 did not require AIE and the contractors retained by DME to access the hanging platform which had not been erected at the time the work in the upper and lower zones was being carried out. However, Visy had not received any written verification that the scaffolding inside the digester was complete and safe for use before the permit for work inside the digester was issued to AIE. When issuing Work Permit #A22977, on 3 July 2008, prior to the incident, the authorising officer, Mr Osgood, relied on information conveyed to him from an unnamed source, that the internal scaffold had been completed. He made no additional inspection himself to check the veracity of information prior to issuing a work permit permitting work to commence inside the digester. At 19:45 on 3 July 2008, Work Permit #A22977 was transferred by Leon Carrington to Tim Allen, Supervisor for AIE. This permitted AIE and the contractors retained by DME to continue to undertake the work in relation to the removal of screens inside the digester during the nightshift. This task involved workers utilising the upper level scaffolding that had been completed inside the digester vessel. 23The Agreed Statement dealt with work inside the digester on 4 July 2008. It was stated that on 4 July 2008, Work Permit #A22977 was transferred by Tim Allen to Leon Carrington, Supervisor for AIE. This permitted AIE and the contractors retained by DME to continue to undertake the work in relation to the removal of screens inside the digester during the dayshift. 24The Agreed Statement continued: The work to be carried out by AIE and the contractors retained by DME on 4 July 2008 was to take place in the upper and lower zones of the digester only and the area was accessed at both a higher and lower level. The work on 4 July 2008 did not require AIE and the contractors retained by DME to access to the hanging platform which had not been erected at the time the work in the upper and lower zones was being carried out. Visy did not issue a further work permit to Bell Scaffolding in relation to the work of erecting the scaffolding in the digester vessel on 4 July 2008. Nor did Visy or Bell Scaffolding vary Work Permit #A22970 by completing the 'Permit Receiver Transfer' section of the work permit for the person who was to hold the permit for the work to be undertaken on 4 July 2008. Peter Nugent states that he inspected the scaffold before commencing work in the digester prior to the incident. 25The Agreed Statement next dealt with the erection of the mid level scaffolding on 4 July 2008: On 4 July 2008, Bell Scaffolding employees commenced to erect the mid level scaffolding in the digester. The mid level scaffolding was to be erected in two phases, first the upper middle scaffold, followed by the lower/hanging platform suspended beneath support needles located inside the digester. As each stage of scaffolding was completed Visy was at liberty to permit and permitted work to be carried out inside the digester for the completed stage. A number of scaffolders employed by Bell including Mr Wragg, Bell Scaffolding foreman, Mr Clinton Thompson, intermediate scaffolder, Mr Jason Thompson, basic scaffolder and Mark Wellman, trainee scaffolder undertook the task of constructing the mid level scaffold on 4 July 2008. In order to construct the mid level lower/hanging scaffold, scaffolding tubes were dropped below and secured to the tube supports. The tubing had to be installed slightly offset due to fact that the mid level upper scaffold frames were already erected above the tubes. Girder clamps were used to secure the tubing and supporting structure. The slight offset in the scaffold resulted in one side of 'work deck 5', one of the working decks of the mid level lower/hanging scaffold, being hard up against the inner wall of the digester. As a consequence the opposite side was further away from the digester wall than the usual 100mm gap. Mr Bellden had instructed his scaffolders to erect the scaffolding in the manner they did because of the need to allow for the offset. The need to make provision by the offset affected the ability of the scaffolders carrying out the erection to properly fit out work deck 5 with the curved board sections, as one of the corner openings was larger than 90 degrees. As such the custom designed curved boards would not fit. Bell employees decided to utilise a straight timber scaffold plank, or lapping board, in lieu of the curved board. The scaffold plank or lapping board was lashed into position across the resulting void. However the ends of the lapping board butted up against the inner wall of the digester and left a curved void where the lapping board met the curved inner wall of the digester. The maximum gap was measured at 430mm, tapering at either end to the point of contact of the ends of the board with the wall. On or after 4 July 2008, Mr Wragg states that he had not placed a 'scaftag' at Scaffolding Deck 4 at the point of access to the ladder down to Work Deck 5 or at the point of egress from the ladder onto Work Deck 5 to certify that the scaffolding on Work Deck 5 was complete and safe for use. On or after 4 July 2008, Mr Wragg states that he had not placed an 'incomplete scaffold' tag or signage at the entrance to the digester where the mid level lower/hanging scaffold was accessed or on the mid level lower/hanging scaffolding or at Scaffolding Deck 4 at the point of access to the ladder down to Work Deck 5 or at the point of egress from the ladder onto Work Deck 5 to indicate that the scaffolding at that level was not complete. On 4 July 2008, neither Mr Wragg or any one from Bell Scaffolding placed any red-and-white barricading tape at the entrance to the digester where the mid level lower/hanging scaffold was accessed or on the mid level lower/hanging scaffolding to indicate that the scaffolding at that level was not complete and that the scaffolding in that area was not safe to use. Nor did Mr Wragg or any one from Bell Scaffolding inform Visy, DME or AIE representatives or any of the other contractors doing maintenance work on the digester that that the scaffold in the mid level lower/hanging was incomplete. Work Permit #A22970 was not returned to Visy by Bell Scaffolding on 4 July 2008. Mr Bellden of Bell stated that it was his understanding that the scaffolding was completed on the afternoon of 4 July 2008. Mr Bellden did not notify any one from Visy that the scaffolding work in the digester was completed on 4 July 2008 or thereafter. Mr Bellden stated that the appropriate person to be notified that the scaffolding was completed was Jason Hughes, Engineering Manager from AIE. 26The Agreed Statement next dealt with work inside the digester on 5 July 2008: On the evening of 4 July 2008, Work Permit #A22977 was transferred by Leon Carrington to Tim Allen, Supervisor for AIE. This permitted AIE and the contractors retained by DME to continue to undertake the work in relation to the removal of screens inside the digester during the nightshift. Persons rostered to work the night shift were permitted by Visy to enter the digester and perform work at different levels inside the digester during the night shift. On 5 July 2008 at 7.30 am a further work permit was issued by Mr John Ayres, an engineer employed by Visy to Mr Andy Morley, an employee of AIE (Work Permit #A22984). The work permitted to be undertaken in relation to the digester under Work Permit #A22984 was for the Outlet devices and lower screens. The work permit related to Work Order No. 620518. The estimated finish time for work to be performed specified in the Work Permit was 19:00 on 13 July 2008. Work Permit #A22984 did not specify the number of people permitted to work under the permit. Work Permit #A22984 permitted AIE and the contractors retained by DME to commence work in relation to the removal of screens inside the digester. This task involved workers utilising the upper mid level and mid lower/hanging scaffolding inside the digester vessel. Work Permit #A22984 was issued despite the fact that Work Permit #A22970 for the construction of the scaffolding inside the digester had not been returned by Bell Scaffolding. Visy did not receive any written verification that the scaffolding inside the digester was complete and safe for use before Work Permit #A22984 was issued by Mr Ayres. Visy did not inspect the digester or the scaffolding to ensure that the required 'scaftags' had been affixed to scaffolding certifying the scaffold was complete for each level and safe for use prior to issuing Work Permit #A22984 permitting persons to perform work from the scaffolding. On 5 July 2008 Mr Xavier Nugent commenced work at around 6:30am, meeting other workers at the Wynyard Hotel, Tumut, where a bus took them to the Visy mill. The work group arrived at the Visy site just before 7:00am. The workers met with Mr Hughes to discuss the work planned for the day. Dean Van Den Anker ("Mr Van Den Anker"), Leading Hand for AIE, issued specific work instructions to the group. The work involved the installation of an inverted conical tarpaulin structure to catch and divert black liquor, a corrosive bi-product of the digestion process, liquids and water from the upper areas of the digester to a central drainage point, and away from persons working inside the digester. The tarpaulin was installed at the upper level of the middle scaffolding section. On the day of the incident much of the internal surface of the digester, including the scaffolding, remained covered in the black liquor residue. Visibility inside the digester was poor due to the surface coating and lack of natural light. The light source was from portable task lighting, such as lead or flood lighting. On 5 July 2008, Peter Bellden attended at the premises and was performing his role relating to the logistics and operations being undertaken by Bell at the premises on that day. This included discussions with scaffolders employed by Bell as to the work they were to undertake at the premises that day and Visy managers about the scaffolding requirements for that day. Mr Rick Nelson, Safety Manager from Bell was also on site at the premises on 5 July 2008. Bell also had a number of scaffold crews on site at the premises on 5 July 2008. On the morning and early afternoon of 5 July 2008 Mr Xavier Nugent provided assistance to workers and tradespeople working inside the digester. He ran errands, collected tools and equipment and brought them to workers inside the digester. He was not involved in any of the internal work at this stage. On the afternoon of 5 July 2008 Mr Peter Nugent was instructed by AIE to commence the installation of wire rope strops, or slings, in the mid level of the digester, to which one of the lifting ring assemblies was to be hung. The hanging scaffold platform was required to allow for the installation of the strops and lifting ring assembly. In order to undertake this task workers were required to utilise work deck 5 on the middle lower/hanging scaffold. Entry was gained to that section of scaffold from an access hole in the digester. A fixed aluminium ladder provided access from the access deck to the lower decks, including work deck 5. The access provided to the lower hanging scaffold required persons to climb over or through the scaffold ledgers to get onto the ladder. On 5 July 2008, Mr Peter Nugent and Mr Xavier Nugent and a number of other workers signed the 'Work Party Sign On Sheet' attached to Work Permit #A22984. On 5 July 2008 at approximately 10.30 am, Chris Wragg and Aidan Rangi, scaffolders from Bell entered the Digester Vessel at level 3 to continue to perform work in the digester. Mr. Hughes of AIE stated that on 5 July 2008, two scaffolders from Bell scaffolding were working with the digester crew and AIE supervisors inside the Digester to make any changes to the scaffold whilst work was in progress. The two scaffolders from Bell Scaffolding communicated directly with the AIE area supervisors about the installation of the scaffolding. Mr Wragg, foreman, from Bell Scaffolding stated that as at 5 July 2008, the mid level lower/hanging scaffold platform in the digester was unfinished, and that the access was closed off to work deck 5 from the decks above. Mr Wragg stated that he was awaiting clarification on 5 July 2008 of the work requirements of the subcontractors prior to providing the access and making adjustments to that work deck. The names of the contractors to provide clarification were not specified by Mr Wragg. Mr Wragg stated that he had not affixed a scaftag to the scaffold at the mid level lower/hanging scaffold platform in the digester as it was unfinished. No handover certificate was issued by Bell for the digester scaffold on 5 July 2008. Mr Hughes of AIE stated that on 5 July 2008, he had a conversation with Mr Bellden of Bell Scaffolding. Mr Hughes stated that during that conversation he was informed by Mr Bellden that the internal scaffold was completed, in the middle section of the scaffold. Mr Hughes relied on the information provided to him by Mr Bellden. On 5 July 2008, at about 2.15 pm Mr Hughes went into the digester vessel and proceeded down to Work Deck 5 which was part of the mid level lower/hanging scaffold. Mr Hughes inspected the hanging platform scaffolding erected in the digester including Work Deck 5 to make sure that there was adequate overhead clearance for the work to be carried out. He did not inspect the whole of Work Deck 5. Mr Hughes stated that there was no scaftag attached to the mid level lower/hanging section of the scaffolding, but he had relied upon the verbal communication he had received from Mr Bellden that the scaffolding was complete and safe for use. On the date of the incident no scaftag had been affixed to work deck 5. 27It was on 5 July 2008, of course, that the incident that led to the charge against the defendant occurred. The Agreed Statement described the circumstances: At around 4:10 pm on 5 July 2008, Mr Xavier Nugent entered the digester through the access hole on the Third Level of the digester and proceeded down to Work Deck 5. Jason Hughes also entered the digester through the access hole on the Third Level of the digester at around 4:10 pm on 5 July 2008. Mr Peter Nugent who was already inside the digester also proceeded down to Work Deck 5. Mr Peter Nugent and Mr Xavier Nugent then commenced work installing the strops from the lower hanging scaffolding deck. Upon commencing work on work deck 5, Mr Peter Nugent noticed the lapping board on a section of the deck. He checked it to see if it was secure. Mr Peter Nugent observed the gap between the lapping board and the inner surface of the digester. However, he did not take any action as he did not believe the gap was sufficiently wide for someone to fall through, although he thought that a foot or leg may have been able to slip through. Mr Peter Nugent and Mr Xavier Nugent then commenced work installing the strops from the lower scaffolding deck. Mr Hughes was involved in issuing instructions and passing equipment to workers inside the digester. Mr Hughes left the area to attend to other duties. Approximately 15 minutes after commencing work inside the digester Mr Peter Nugent heard Mr Xavier Nugent call out, and Mr Peter Nugent heard something falling to the area below him. Mr Peter Nugent realised that Mr Xavier Nugent was no longer working in the area that he was last seen, and realised his brother had fallen. At the time of the incident Xavier Nugent and Peter Nugent were the only people working in the digester on the mid level/hanging scaffold where the incident occurred. Peter Pratt was alone, directly above, on the mid level upper scaffold. Mr Xavier Nugent fell through the 430mm gap between the lapping board on the work deck of the scaffolding and the inner wall of the digester. He fell approximately 12 to 14 metres onto another scaffolding platform below. As he fell he collided with other scaffold components. Mr Peter Nugent shouted to co-workers on the level above that his brother had fallen. Mr Xavier Nugent was unconscious when first found, however regained consciousness within a few minutes. Assistance was rendered to Mr Xavier Nugent in the form of dressings and thermal blanket, as well as verbal reassurance. Subsequently, a scaffolder from Bell who was working at the premises at the time of the Incident was contacted to assist in providing better access to the area where Mr Xavier Nugent had landed in anticipation of emergency personnel arriving. Some of the scaffolding was removed from around Mr Xavier Nugent in order to improve access, and the external landing area around the access hole was cleared. Once the ambulance arrived they coordinated the rescue of Mr Xavier Nugent. Immediately following the incident Mr Lex Kingma ("Mr Kingma"), the General Manager of Visy, took steps to secure and preserve the incident site, including removing all persons from the digester and restricting access. Danger tape was installed over walkway access points. Locks and cables were used to secure the access hole covers in place, with the keys being returned to Mr Kingma. 28The Agreed Statement described the circumstances of the return of the Work Permit for Scaffolding work inside the Digester on 5 July 2008: Mr Nelson, Safety Manager for Bell, was the holder of Work Permit #A22970 on 5 July 2008. Mr Nelson stated that he was informed on the afternoon of 5 July 2008 that the scaffold was complete. On 5 July 2008 at 5:00pm, Work Permit #A22970 in relation to the work for the erection of scaffold in the digester vessel was returned by Bell's Safety Manager, Mr Nelson to Mr Baldwin, a Production Engineer employed by Visy. Mr Nelson and Mr Baldwin from Visy 'signed off' on the permit cancellation. By signing off on the permit cancellation Mr Nelson declared that the " Permit Receiver/Holder declares work is completed, all personnel and materials have been removed and the plant & equipment are safe to return to service ". By signing off on the permit cancellation Mr Baldwin declared that the " Authorised Operator declares that the work has been completed, the area inspected and safe to return to service. All associated permits have been returned and cancelled . Mr Baldwin stated that Mr Nelson had assured him that the work was complete in relation to the erection of the scaffold. 29Finally, the Agreed Statement dealt with the defendant's OHS systems prior to the incident: Bell had their own OHS and safety management system, policies and procedures which included a mission statement on safety, safety manuals and incident reporting forms. Bell had a Safety Manager who was responsible for the implementation and compliance, and provided a monthly report to the Managing Director, which was circulated to Company directors and Branch Managers. Bell's OHS system was reviewed annually or in response to workplace issues. Bi-monthly meetings were held and work place issues were discussed. Bell provided an in-house training program for new employees, including induction training. There is an annual written assessment on training and legislative requirements. A 'New Start' pack is provided to all new employees, which outlines Bell policies and procedures, forms and their own pocket "Erection Manual" for scaffolding. Bell also uses their payroll system to distribute flyers to employees on relevant workplace issues. 30The prosecutor also tendered documentation supporting the Agreed Statement of Facts. This documentation was as follows: a. 28 photographs taken by Andrew Skegg, OPHS Safety Officer at Visy b. Scaffold design diagram c. Email correspondence Colin Peachy, Visy to Peter Bellden dated 28 February 2008 d. Bell Scaffolding (Aust) Pty Ltd -Quote dated 28 February 2008 e. Visy Purchase Order 29937 dated 01/05/08 to Bell Scaffolding (QLD) f. Visy Purchase Order 25371 dated 09/05/08 to Bell Scaffolding (QLD) g. Email correspondence Jason Hughes AIE to Peter Bellden and ors dated 20 May 2008 h. Email correspondence Jason Hughes AIE to Peter Bellden and ors dated 27 May 2008 i. Email correspondence Jason Hughes AIE to Peter Bellden and ors dated 21 June 2008 and attachment entitled 'Timeline- Scaffold Critical activities _estimated time and duration for' j. Bell Scaffolding Payroll Weekly Summaries for 02/07/2008-08/07/2008 for Chris Wragg, Clinton Thompson, Mark Wellman, Jason Thompson k. Work Permit VPP9-09-9.4-FM-031-0, #A22970, dated 3 July 2008 l. Work Permit VPP9-09-9.4-FM-031-0, #A 22977 dated 3 July 2008 m. Job Safety and Environmental Analysis Worksheet dated 3 July 2008 for 'Internal Digester Scaffolding' prepared by Bell Scaffolding n. Work Permit VPP9-09-9.4-FM-031-0, #A 22984 dated 5 July 2008 together with "Work Party Sign On Sheet' o. Job Safety and Environmental Analysis Worksheet No. 62081 dated 3 July 2008 for 'Remove Outlet Device' p. Confined Space Entry record - Third Level - Day Shift 5/7/08 Confined Spaces Entry/Exit Log - Project: Remove Grates - Digester dated 4,7/08, 5/7/08' q. Confined Space Entry Permit VPP9-09-9-4-FM-031-2 r. Confined Space Risk Assessment dated 11 June 2008 s. Confined Spaces Risk Assessment completed by Rebecca Parsons and Geoff Steel t. Confined Spaces Risk Assessment completed by Dean A, Mike B and Jason H dated 6 July 2008 u. Bell Scaffolding Handover Certificates 0851, 0852 and 0853 v. Confined Spaces Entry Permit VPP9-09-9.4-FM-031-Permit Access to Digester Vessel (A22EE2112) dated 3 July 2008 w. WorkCover NSW Notebook extract C0361 pages 0060-0068 Evidence for defendant 31For the defendant, the affidavit of Richard William Nelson was tendered. Mr Nelson was the Workplace Health and Safety Manager for the defendant. He had been employed in that capacity since January 2006. Mr Nelson was not required for cross-examination. 32Mr Nelson's duties included the following: a. looking after workers' health and safety; b. generating policies and procedures relative to occupational health and safety; c. providing leadership and guidance to site supervisors and leading hands relative to occupational health and safety; d. generating Safe Work Method Statements for use on sites (taking into account the idiosyncrasies of each site); e. providing the means and education to site supervisors to enable them to induct scaffolders on sites into safe work methods and make changes as and when necessary; f. reviewing and updating work method statements, templates and safety plans; g. assisting at shutdowns such as was the case at the Visy Plant at Tumut NSW. h. incident reporting, rehabilitation work, collecting medical reports for onward transmission to the various WorkCover Authorities and managing workers to assist them to return to work. 33In relation to tasks undertaken at the Visy site Mr Nelson deposed: In the case of the Visy shutdown, I liaised with the management of the company that owned the site as well as the principal contractor. At the time of the offence, Bell's overall system of safety was adequate. All scaffolders were inducted and trained. Scaffold maintenance was dictated by the Scaffold Maintenance Manual. Also, safety plans, scaffold diagrams and Safe Work Method Statements were produced for the client, Visy. There were a number of approved policies including an Operational Health and Safety Policy in existence. There were daily 'toolbox talks' giving instruction to our own workers and other workers on the site. 34Mr Nelson stated there had been full cooperation with WorkCover in its investigation of the incident. He also described changes to the defendant's safety measures following the incident and included with his affidavit the supporting documentation in that respect: The supervision of erected scaffolding at shutdown sites has been strengthened by two post-erection scaffold inspections by different inspectors to verify the integrity of the scaffolding. Enhanced training of scaffolders has been implemented with new Erection Manuals. Strict enforcement of Scaffold Handover Certificates. Strict enforcement of the compilation of Scaffold Registers. Enhanced Safety, Health and Environmental Management Plans such as the one compiled for the Visy 2010 Maintenance Shutdown. Meeting records are kept of 'toolbox talks' where personnel are encouraged to express methods of improving safety by being given the opportunity to discuss the requirements of individual jobs such as was practised at the Visy 2009 Maintenance Shutdown. There has been an improved system implemented in the area of specialised tasks. This includes operating in confined spaces. Documentation in respect of those who have received the more specialised training has been incorporated into the PayGlobal module of the human resources payroll system to ensure that only personnel who have been properly trained are allowed access to such sites. Verdict 35Having regard to the charge in this matter, the particulars of the offence, the agreed statement of facts and the evidence tendered in the proceedings, I accept the plea of guilty by the defendant and will enter a verdict accordingly. Consideration 36The question to be determined is the appropriate penalty to be applied to the defendant for the contravention of s 8(2) of the OHS Act. Insofar as maximum penalty is concerned in this case it is $550,000. 37The obligation on the defendant, in carrying out work in the digester, was to ensure that workers, in particular Xavier Nugent, were not exposed to risks to their health and safety. That is, in designing and erecting the scaffold in a digester that was approximately 60 metres high and 5.5 metres in diameter, which was a confined space with poor visibility and where surfaces had been coated with a black liquor residue, the defendant was required to ensure Xavier Nugent was not at risk of injury from falling. It was a dangerous environment. The risk was a serious one, because if a worker was to fall from Deck 5 of the scaffolding it was a 12-14-metre drop to the next level of scaffolding. It was fortunate Mr Nugent was not killed. There have been cases in this Court where the height of the fall was less than 12-14 metres, but death has resulted. 38As the Agreed Statement of Facts revealed, the particular configuration of the mid level lower/hanging platform scaffold required its construction beneath support needles erected in the digester. The design of the scaffolding devised by the defendant, including the hanging platform, had not been erected previously by the defendant for maintenance work carried out inside the digester on other occasions. In order to construct the mid level lower/hanging scaffold, scaffolding tubes were dropped below and secured to the tube supports. The tubing had to be installed slightly offset due to fact that the mid level upper scaffold frames were already erected above the tubes. 39The configuration resulted in a slight offset of the scaffold deck of work Deck 5 so that one side of the work deck was hard up against the inner wall of the digester. As a consequence, the opposite side was further away from the digester wall than the usual 100mm gap. 40The offset resulted in the custom designed curved boards of the work deck not fitting. The defendant's employees decided to utilise a straight timber scaffold plank, or lapping board, in lieu of the curved board. The scaffold plank or lapping board was lashed into position across the resulting void. However, the ends of the lapping board butted up against the inner wall of the digester and left a curved void where the lapping board met the curved inner wall of the digester. The maximum gap was measured at 430mm, tapering at either end to the point of contact of the ends of the board with the wall. The gap between the boards of the work deck and the inner wall of the digester was sufficiently large for a person to fall through. 41As a consequence of the exposure to the risk, Xavier Nugent fell through the 430mm gap between the lapping board on the work deck of the scaffolding and the inner wall of the digester. He fell approximately 12 - 14 metres onto another scaffolding platform below. 42The charge was that the defendant failed to provide and maintain a safe system of work for the installation and use of scaffolding in the digester. In that respect, the defendant failed in a number of ways described earlier in this judgment. The most obvious failure was the failure to cover and secure the void area between the inner wall of the digester and the deck of the scaffold work platform on Work Deck 5. The defendant also failed to: provide a railing or other barrier to prevent persons accessing the void area; provide any form of warning that the scaffold was incomplete and not safe to work upon; and failed to undertake an inspection by an appropriately qualified person to ensure that the scaffolding work was completed and was safe to permit persons to utilise the scaffolding. 43In designing and erecting the scaffolding, the defendant would obviously have been aware of the dangerous environment inside the digester including the fact it was a confined space and dimly lit. The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the risk to safety are relevant in assessing the seriousness of the offence: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd [1999] NSWIRComm 353; (1999) 92 IR 8 at 27; WorkCover Authority of NSW v ACI Operations Pty Ltd [1994] NSWIRComm 167; [1994] NSWIRC 11; Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275. In the present case the availability of simple, straightforward steps to avoid the risk in such a dangerous environment, such as covering the void, erecting a barrier, providing warnings against accessing the Work Deck and/or carrying out an inspection by an appropriately qualified person, highlight the serious nature of the offence. 44The prosecutor submitted that the risk was reasonably foreseeable. The degree of foreseeability of a risk to safety is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. The defendant submitted, however, that Xavier Nugent was not authorised to enter the digester; that the likelihood that Mr Nugent would act contrary to the instructions given to him and enter the digester without first being authorised to do so and checking the scaffold and digester before doing so was not obvious or reasonably foreseeable ( Morrison v Powercoal Pty Ltd [2003] NSWIRComm 342; (2003) 130 IR 364 at [33]). 45Despite the way it was framed, the defendant's submission regarding Xavier Nugent not being authorised, appears to stem not from any deliberate or flagrant breach by Xavier Nugent of a direct instruction. Such a submission would not be consistent with the evidence, as Mr Nugent had a sign-on work permit on the day to enter the digester and perform work. Moreover, AIE was engaged by DME to coordinate the planning and scheduling of upgrading work on the digester during the shutdown and in particular, to undertake the upgrade work of replacing the screens located inside the digester. Consistent with that role, on 5 July 2008 Mr Hughes, having entered the digester at the same time as Xavier Nugent (about 4.10 pm), was issuing instructions and passing equipment to workers inside the digester. Clearly, Xavier Nugent was inside the digester with the approval of Mr Hughes. 46The defendant's submission regarding Mr Nugent's unauthorised entry into the digester appears to be based on the fact that both Visy and AIE failed to take certain steps to ensure safety and in the absence of those steps having been taken, Xavier Nugent was not authorised to enter the digester. In respect of Visy: it failed to follow its own policies and procedures by failing to undertake an inspection of the scaffolding; it failed to ensure that Work Permit #A22970 was returned before other work permits were issued, one of which permitted Xavier Nugent access to the incomplete and unsafe scaffolding and placed him at risk; it did not require the defendant to provide a documented system of inspection certifying that the scaffold was complete and safe to use; and it did not enforce its system of scaftags, which might otherwise have alerted workers in the area that the scaffolding was not safe. It is to be noted that in relation to what occurred on 5 July 2008, Visy was prosecuted: I nspector Cooper v Visy Pulp and Paper Pty Ltd [2011] NSWIRComm 136. 47Insofar as AIE is concerned, Backman J, in a related prosecution (Inspector Cooper v Allied Industrial Engineering Limited [Company No. 624453] [2011] NSWIRComm 131), described that company's failures in the following terms: [23]... Mr Hughes [AIE's Engineering Manager] knew that no scaftag had been attached to the mid-level lower/hanging section of the scaffolding shortly prior to the incident. He had relied instead upon the verbal assurances received from Mr Bellden that the scaffolding was complete and safe for use. It was, in those circumstances, incumbent upon AIE to undertake an inspection of the Work Deck to determine whether the scaffold was complete and safe for use prior to permitting persons to perform work from the deck. On the day of the incident, Mr Hughes had inspected the hanging platform scaffolding inside the digester, which included Work Deck 5, to make sure that there was adequate overhead clearance for the work to be carried out. He did not, however, inspect the whole of Work Deck 5. He failed to identify the void between the edge of the working deck and the internal wall of the digester. He took no other steps to inspect the mid-level lower/hanging scaffold to ensure that it was safe to use before work commenced in that area. No other person acting on behalf of AIE undertook an inspection of the hanging platform scaffolding erected inside the digester prior to the incident. These failures of AIE exposed persons working on the scaffold in the area of Work Deck 5 to serious risk to their health and safety. 48In Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123; (2008) 182 IR 124 at [369] the Court said: [369] In determining whether a defendant should have reasonably foreseen a risk of injury, it is not necessary to show that a reasonable person placed in the defendant's position would have foreseen as a possibility the particular chain of cause and effect involved in the happening of the defendant's accident or, in other words, the precise risk of injury or how it occurred. It is sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen or it was reasonable to foresee in a general way the kind of thing that occurred. 49On that basis, the question is whether it was reasonably forseeable that a person not in the defendant's employ may be put at risk of injury from falling through an open void on Work Deck 5. One does not need to ask whether it was reasonably forseeable that Visy and AIE would fail to ensure safety in the way they did and as a consequence a person would be placed at risk of falling through the open void. 50Mr Wragg, the defendant's foreman in charge of constructing the scaffolding, stated that as at 5 July 2008, the mid level lower/hanging scaffold platform in the digester was unfinished, and that the access was closed off to Work Deck 5 from the decks above and that is why he had not affixed a scaftag to the scaffold. Despite stating the platform was unfinished Mr Wragg did not place an 'incomplete scaffold' tag or signage at the entrance to the digester where the mid level lower/hanging scaffold was accessed or on the mid level lower/hanging scaffolding or at Scaffolding Deck 4 at the point of access to the ladder down to Work Deck 5 or at the point of egress from the ladder onto Work Deck 5 to indicate that the scaffolding at that level was not complete. Moreover, on 4 July 2008, neither Mr Wragg nor anyone from defendant placed any red-and-white barricading tape at the entrance to the digester where the mid level lower/hanging scaffold was accessed or on the mid level lower/hanging scaffolding to indicate that the scaffolding at that level was not complete and that the scaffolding in that area was not safe to use. 51There was an obligation on the defendant to ensure that either the work was completed and a scaftag affixed or that there was an 'incomplete scaffold' tag or signage or red-and-white barricading tape in place to prevent access to Work Deck 5. In the absence of these measures having been taken, it was reasonably foreseeable that a person might enter the area where the risk existed and expose that person to the risk of serious injury from falls from or through the scaffold inside the digester. 52The gravity of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendants: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) [1999] NSWIRComm 343; (1999) 90 IR 464 at 476. Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: Cahill v New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201; (2008) 182 IR 231 at [35]. 53In the present case, as the prosecutor submitted, the risk that manifested itself resulted in serious injuries to Xavier Nugent. The injuries from falling from height of 12-14 metres inside the digester and striking various scaffold components could have resulted in more significant injuries, and potentially death. Section 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 provides that the fact that an offence involved a grave risk of death to another person or persons is an aggravating factor to be taken into account in determining the appropriate sentence for an offence. 54General and specific deterrence are matters to be taken into account in sentencing under the Act: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [71] - [80]; Cahill (No 4) at [43]. In relation to general deterrence, I agree with the prosecutor's submission that the sentence imposed upon the defendant should reflect the need to deter others from failing to take a rigorous approach to ensuring that known hazards from working with scaffolding are rectified, and that ensuring that scaffold inspection systems, the use of scaffold handover certificates, and scaffold tags systems are carefully monitored to ensure work is undertaken only on scaffolding that is complete and demonstrated to be safe for use. 55In relation to specific deterrence, the defendant submitted that this was not a case where there was any need for the penalty to be framed so as to require the attention of the defendant to be drawn to the need to address safety issues. It was noted the defendant: [H]ad an excellent safety record and had comprehensive measures in place demonstrating its commitment to occupational health and safety so that its employees and visitors to its sites are not exposed to risks. Remedial steps were taken immediately following the accident to ensure there would be minimal risk of recurrence. In that regard, as per industry standards, little or no changes to the current safety procedures at the time were seen as necessary or critical. 56The prosecutor acknowledged the defendant had made modifications to its safety systems generally and including in relation to scaffolding work which is performed during shutdowns of Visy's plant. However, the prosecutor also noted the defendant continues to operate its business in the scaffolding industry and continues to provide scaffolding for the annual shutdown at Visy's plant. It was submitted specific deterrence should still be a factor taken into account in fixing the penalty: see Inspector Wilkie v Anstee (No. 2) [2007] NSWIRComm 20; Capral Aluminum. 57The chances of the defendant re-offending are, I think, not great. However, the defendant continues to operate in a dangerous industry and so I will include a small element only in the penalty for specific deterrence. 58The defendant identified a number of matters that it claimed should be considered by the Court in assessing its culpability. Reference was first made to the defendant's system of work including that: the defendant had its own OHS and safety management system, policies and procedures which included a mission statement on safety, safety manuals and incident reporting forms; the defendant had a Safety Manager who was responsible for the implementation and compliance, and provided a monthly report to the Managing Director, which was circulated to Company directors and Branch Managers; the defendant's OHS system was reviewed annually or in response to workplace issues. Bi-monthly meetings were held and work place issues were discussed; the defendant provided an in-house training program for new employees, including induction training. There is an annual written assessment on training and legislative requirements. A 'New Start' pack is provided to all new employees, which outlines Bell policies and procedures, forms and their own pocket "Erection Manual" for scaffolding. Bell also uses their payroll system to distribute flyers to employees on relevant workplace issues. 59It may be accepted that the defendant was not an employer who paid no regard to safety in the workplace. The defendant obviously took safety seriously. However, what occurred on 5 July 2008 was a serious lapse in the defendant's approach to safety. 60The defendant next referred to the fact that Xavier Nugent's employer checked the scaffold and the digester for safety, saw the gap between the lapping board and the inside of the digester and considered it too narrow for a person to fall through. Peter Nugent did not bring the gap to Xavier's attention. The gap was obviously not too narrow. It may be accepted that Peter Nugent's failure to warn Xavier or to prevent work proceeding whilst the gap existed, contributed to the risk. The defendant, however, cannot escape the fact that it created the risk and having done so, did not take appropriate or adequate steps to ensure personnel were not exposed to the risk. 61It was next submitted Xavier Nugent should also have checked the scaffold and the digester for safety before commencing work. The principle has been long established in this jurisdiction that the OHS legislation " was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry": Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257. Even if Xavier Nugent had failed to check the scaffolding this does nothing, in my view, to mitigate the seriousness of the defendant's failures to ensure that Mr Nugent was not exposed to the risk of falling from Work Deck 5. 62It was next submitted for the defendant that Visy failed to provide adequate lighting in the digester. That may be so, but given the obligation on the defendant to ensure safety, having seen that the lighting was dim it had a responsibility to either advise Visy to do something about it, provide its own lighting, complete the work of the Deck or prevent work from continuing until the standard of lighting was adequate. The fact that the lighting was dim and the defendant did nothing about it, only serves to add to the seriousness of its failure to prevent work taking place on Work Deck 5. 63The defendant further submitted as to culpability that Mr Nugent's employer failed to check whether the scaffold handover certificate for the erection had been returned to Visy, signifying its completion and safety certification. It may be accepted that if Peter Nugent had checked he would have found the certificate had not been returned and, therefore, it had to be assumed the scaffold was not safe. I have had regard to this failure on Peter Nugent's part in assessing the defendant's culpability. 64It was next submitted that independent subcontractors responsible for "hole watch" failed to prevent Xavier Nugent's entry into the digester before checking it was safe to do so. As I understand the evidence, ACN 123 556 374 Pty Ltd was contracted to provide trained staff at the digester, inter alia , to supervise and control entry of persons into and out of the digester. Xavier Nugent had the relevant authority to enter the digester. I do not understand that in addition to citing the authority, ACN 123 556 374 Pty Ltd was required to carry out visual inspections of the scaffold before permitting entry. 65Finally, as to culpability, it was submitted Visy failed to implement a safe system of work. I accept this was a significant contributing factor to the risk arising. However, as Walton J, Vice President observed in Workcover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25; (2002) 112 IR 284 at [61]: [W]hen determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 (at 437) and WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 at [31]; Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99. 66There are a number of matters of a subjective nature that require consideration. The first is the guilty plea. The prosecutor submitted the plea was not entered at an early stage and, therefore, it was open to the Court to reduce the extent of the discount that the defendant may have otherwise received, consistent with the reasoning in R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 at [11] -[13] and R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32] . 67The prosecutor's submission was based on the fact that the Application for Order was filed on 11 June 2010 but a guilty plea was not entered until 28 July 2011. The defendant filed a notice of motion on 26 November 2010 seeking orders that a preliminary hearing be conducted to determine as a separate question whether the digester was a 'place of work' within the meaning of s 8(2) of the Act. This notice of motion was the subject of considerable affidavit evidence, hearings in this Court and lengthy discussions between the defendant and the prosecution. It was submitted the time and costs associated with the prosecution preparing to meet that case and the hearing of that motion would to a significant extent, mitigate the extent of the utilitarian value that would have otherwise arisen from an early plea. 68The defendant accepted that the Court would not apply a discount of 25 per cent because the plea was not entered at the earliest opportunity. However, the defendant submitted the discount would be at the higher end of the scale because ultimately time and resources were saved by the abandonment of the interlocutory challenge and the need for a trial was dispensed with. I propose to apply a discount of 15 per cent to reflect the utilitarian value of the plea. 69As to remorse and contrition, the prosecutor accepted that the guilty plea might be regarded as an expression of remorse and contrition. However, it was submitted there was otherwise no expression of remorse or contrition on behalf of the defendant or express acceptance of responsibility for its actions, or any acknowledgement of the injury, loss or damage caused (see s 21A(3)(i) of the Crimes (Sentencing Procedure) Act ). 70The defendant submitted it had provided evidence that it accepted responsibility for the incident and acknowledged the injury caused by its actions or had made reparation for such injury, loss or damage or both. 71With respect to the defendant, apart from the plea of guilty it has provided no evidence that it has accepted responsibility for its actions and only in an oblique way has the defendant acknowledged the injury it caused to Xavier Nugent. The defendant has made no reparation for the injury. 72It seems to me the Court should not need to go searching for expressions of remorse hidden away in some form of conduct that is said to reflect a defendant's regret or sorrow for its actions. If a defendant wants the benefit of an expression of remorse the expression should be plain to see. Moreover, in this case a good deal of the defendant's submissions were directed to attempting to demonstrate the greater culpability of other parties for what occurred, which in the absence of an unambiguous expression of remorse tends to detract from a pleading that the defendant genuinely accepts responsibility for creating a risk that caused serious bodily injury to a worker. 73It is noted the prosecutor accepts the defendant co-operated fully with the WorkCover Authority throughout its investigation into the incident on 5 July 2008. The Court also accepts this was so. 74There are other subjective factors the defendant submitted should be taken into account. The Court accepts the following factors are to be taken into account in mitigation: (a) the defendant has conducted a significant business over many years in a dangerous industry [involving the erection of scaffolding in large structures of complex shape, with no prior convictions under the Occupational Health and Safety Act (2000) (NSW) or its predecessors, or related legislation in the other states of Australia; (b) the defendant had safety systems in place prior to the incident: (i) the defendant employs a Safety Manager. The Safety Manager's role covered many aspects with respect to scaffolding but in circumstances such as erecting scaffolding in confined spaces as was the case at the VPP9 digester vessel, the role was more specific. The Safety Manager was required to advise scaffolders of the hazards of encountering gases when working in confined spaces and how to detect the same. He also advised on the potential hazards of falling from height and how to set up recovery systems such as rope work for scaffolders to hook onto. This he did; (ii) It is apparent that the site owner and other contractors also had a duty of care to ensure viable and adequate safety systems were not only in place but also assiduously followed. No one should have been allowed into the VPP9 digester vessel without the appropriate training and qualification for working in confined spaces and it was also the primary duty of the other contractors to enforce this; (c) the defendant made improvements to its safety system following the incident. This has included: (i) higher standards of training for working in confined spaces and working at height; (ii) maintaining much more up to date training registers to ensure only those trained for particular tasks are given access to the various sites that require such training; (iii) all directors, managers and supervisors have undergone additional OH & S training including awareness of their obligations to company staff and, just as importantly, the obligations owed to other workers not employed by Bell Scaffolding who perform tasks within Bell's places of work; (iv) more detailed drawings of scaffolding systems will be available to employees to ensure that such things as unsafe gaps, which may have been the cause of the present offence, are not permitted to recur; (v) all of Bell's scaffolders have had their training requirements re-assessed and training has been repeated where necessary; (vi) increased inspections of scaffolding have been instituted to ensure its safety and that it is fit for purpose; (vii) the assessment of Bell's training requirements will be a continual process to ensure that the most up-to-date industry standards are implemented and adopted. (viii) supervision on shutdown sites has been strengthened with post scaffold erection inspections carried out by a second person to verify the integrity of the scaffold. (ix) tighter control on the training of scaffolders in specialist tasks such as confined space has been implemented e.g. the recording of information within the PayGlobal Qualifications module of the HR payroll system. This flows through onto shutdown sites where checks are made to ensure only those suitably trained enter the confined spaces. (x) tighter control and management of documentation i.e. the signing off of safe work Method statements by management before they are talked through and signed off by the scaffolding work crew. 75On the question of parity, the defendant submitted that the principal cause of the workplace injury was the failure of Visy, AIE and to a lesser extent Delter Services to ensure that the systems of work that required employees to be adequately trained for the safe work in the digester and confined space, were complied with. The failure to enforce the system of work established by Visy and to enforce the work permit system for occupation, it was submitted, led to the premature use of the worksite and in turn to the injury. The defendant submitted there was a sufficient difference between its culpability and Visy and AIE so as to permit the conclusion that Visy and AIE were substantially more culpable than the defendant for the offence. 76It was submitted that of the three corporations charged, the defendant was properly to be regarded as the least culpable and should, accordingly, applying the principle of parity, receive a penalty less than that imposed on either Visy or AIE. 77For his part, the prosecutor submitted it would be open for the Court to conclude that the defendant "had a greater degree of contribution to the creation of the risk and the failure to address the risk and, therefore, greater culpability in relation to the circumstances of the incident than..." AIE or Visy. 78AIE pleaded guilty to a charge under s 8(2) of the OHS Act. The maximum penalty available was $550,000. AIE was fined $90,000. 79In Inspector Cooper v AIE , Backman J considered the relative contributions of AIE, Visy and Bell Scaffolding to the circumstances of the offences. However, as her Honour noted, a difficulty she faced was that she did not know what acts and omissions were alleged against Bell: at [42]. Nevertheless, her Honour found as follows: [42]...What the Court does know is that Bell erected the scaffolding, and, like AIE, was required to operate within Visy's work permit system, relevantly in relation to that aspect of the system involving scaftags and other tags and measures signalling whether the scaffolding was complete and safe for use or incomplete and not safe for use. The Court also knows, on the facts relied upon in these sentence proceedings, that Bell, like AIE, failed to follow that system, and, that Mr Bellden, notwithstanding the failure of Bell to return Work Permit A22970 to Visy, verbally assured Visy that it was completed. In addition, the JSEA prepared by Bell in relation to the erection of the digester's internal scaffolding was deficient in a number of respects, significantly because of its failure to specify that on completion of the erection of the scaffolding a scaftag was to be affixed. [43] On the other hand, Mr Hughes, a director of AIE and its senior site representative at Visy's mill, was both aware of the work permit system (and that aspect of the system relating to the use of scaftags) and he knew, notwithstanding Mr Bellden's verbal assurance to him that the internal scaffold was complete, that no scaftag had been attached to the mid-level lower/hanging section of the scaffolding. In spite of this apparent contradiction, Mr Hughes took no steps to verify that the information from Mr Bellden was correct or that the scaffolding was in fact complete and safe to use. [44] Based on this material, it is open to conclude that the respective culpabilities of Bell and Mr Bellden are greater than that of AIE. It is of particular significance to this finding that Bell constructed the scaffolding and left it in an incomplete and unsafe condition without affixing a scaftag (or ensuring that one was affixed) to signal that the scaffolding was not safe to use. [45] AIE's culpability by reference to that of Visy's culpability is capable of being assessed because of the material available. A combination of that material in the Agreed Facts and the material in the amended charge against Visy, discloses that of the two parties Visy was the more culpable party in the circumstances of the incident which gave rise to AIE's offence. Visy was the principal contractor. AIE and Bell were required to operate within Visy's safety systems. Visy's systems of work permits was deficient. With regard to Work Permit A22970, Visy did not ensure that it was returned by Bell in accordance with its system which should have been before Mr Nugent was permitted to work inside the digester on Work Deck 5. The work permit was not returned by Bell until after Mr Nugent's accident. Despite this, Visy issued another Work Permit A22984 to AIE on 5 July 2008 which permitted work to be undertaken inside the digester. Peter Nugent and Mr Nugent, and other workers signed the "Work Party Sign On Sheet" attached to that Work Permit before they entered the digester to commence work on that day. Visy did not require Bell to provide a documented system of inspection certifying that the scaffold was complete and safe to use. Visy did not inspect the digester or the internal scaffolding to ensure a scaftag had been affixed or otherwise inspect the scaffolding to determine that the scaffold was complete and safe to use and it did not prevent non-employees such as Mr Nugent from commencing work inside the digester and utilising the scaffolding which was not safe. 80Visy pleaded guilty to a charge under s 8(2) of the OHS Act. Visy had a prior conviction and, therefore, faced a maximum penalty of $825,000: Inspector Cooper v Visy at [23]. Visy was fined $145,000. 81In Inspector Cooper v Visy Backman J again considered the respective culpability of the offenders and at [34]-[36] her Honour found: [34] In the earlier judgment against AIE, the Court examined the respective culpabilities of AIE, Visy, Bell and others, and, as best as could be done given the material before the Court, concluded (at [45]) that AIE was less culpable in the circumstances which gave rise to AIE's offence than was Visy. There is no good reason in the present proceedings why the Court should depart from this view. The Agreed Facts relied upon by the parties in both prosecutions are substantially the same, except for some areas of divergence. Given the substantial similarities between the two sets of facts relied upon against AIE and against Visy, the Court adopts and applies its findings with regard to their respective roles at [45] of the judgment in relation to AIE. In addition, the Court notes that the charge to which Visy pleaded guilty emphasised its failure to require the contractors to comply with its system of scaftags, as well as non-compliance with its broader system (encompassing the system with regard to scaftags) of utilising Work Permits. The charge also alleges failures by Visy to undertake an inspection of the digester and the scaffolding. Visy was the principal contractor at the mill and AIE, Bell and other contractors working on the shutdown were all required to work within Visy's systems. [35] Visy also submitted that its culpability was less than Bell and Mr Bellden, both of whom have been prosecuted in relation to the circumstances prevailing at the mill at the time of the accident. Visy based this submission on the following matters: (i) it engaged other parties to perform specialised tasks; (ii) the scaffolding was designed and erected by Bell and certified scaffolders; (iii) Mr Bellden advised Mr Hughes from AIE on 5 July 2008 that the internal scaffolding was complete. [36] With regard to the third point, it is not clear from the Agreed Facts at what time on 5 July 2008 Mr Hughes was advised by Mr Bellden that the scaffolding was complete, that is, before or after the accident involving Mr Nugent. Moreover, this piece of information has little (or no) weight (in the absence of any other information) to an assessment of the respective roles of Visy, Bell and Mr Bellden because what is not known is whether Mr Hughes passed this information onto Visy. While the scaffolding was designed and erected by Bell, which was a specialist contractor, Visy was the principal contractor and Bell, as the specialist contractor, was required to work within Visy's system. It was incumbent upon Visy to inspect the digester and the scaffolding to ensure that the scaffolding was complete and safe to use. It was also incumbent upon Visy to ensure that it, and its contractors, complied with its own system of Work Permits. This was not done with the result that a work permit (A22984) was allowed to issue which permitted Mr Nugent to enter the digester and commence work within the area of Work Deck 5 which was neither complete, nor safe, and which contained a void measuring 430 millimetres through which Mr Nugent fell. These facts, in the absence of other facts relied upon in these proceedings against Bell and Mr Bellden, facilitate the conclusion that Visy was the more culpable party. 82In the result, then, Backman J found on the information available, that the culpability of Bell was greater than AIE, but Visy was more culpable than Bell. The defendant, however, submitted that it was less culpable than both Visy and AIE and, therefore, deserving of a penalty less than $90,000. 83The difference in the present proceeings to those before Backman J is that the Court as presently constituted has the benefit of the two decisions of her Honour and, as well, has before it the acts and omissions of Bell and the agreed facts. What is more, I am not constrained to fix a penalty according to what her Honour determined in two different prosecutions, although I accept that I should avoid any inconsistency in sentencing that might give rise to a justifiable sense of unfair treatment: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606. 84Nevertheless, I agree with her Honour that Bell was more culpable than AIE and less culpable than Visy, although in my opinion only marginally less culpable than Visy. Bell, after all, created the gap on Work Deck 5. If it had not been for that gap no risk would have arisen in the first place. Bell compounded its culpability by failing to take simple, obvious steps to protect workers from falling through the gap until the scaffolding was safe to work on. 85The appropriate sentence to be applied to the defendant in this case, having regard to all of the relevant objective and subjective considerations is $120,000. I so find. Orders 86The Court makes the following orders: (1) The defendant is found guilty of the offence charged under s 8(2) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $120,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. ********** 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: 25 November 2011