Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Ringland v Lonewood Farm Pty Ltd [2013] NSWIRComm 1 Hearing dates: 20/07/2012 Decision date: 17 January 2013 Before: Backman J Decision: (1) The defendant is convicted of the offence. (2) The defendant is fined $65,000 with a moiety to the prosecutor. (3) The defendant is to pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(1) of the Occupational Health and Safety Act 2000 - plea of guilty - employee is fatally injured after falling 4.2 metres through non-trafficable polycarbonate sheeting while on the roof of a kit shed under construction - risk to safety known and obvious - defendant fails to ensure any fall protection is made available to employee - other objective factors considered - general and specific deterrence considered - maximum penalty - subjective factors considered, including defendant's capacity to pay a modest fine - absence of prior convictions taken into account - victim impact statements - penalty and orders Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Category: Principal judgment Parties: Inspector John Ringland (Prosecutor) Lonewood Farm Pty Ltd ACN 074 590 382 as Trustee for the Lonewood Trust ABN 43 886 804 046 (Defendant) Representation: Mr D O'Neill (Prosecutor) Mr P O'Connor (Defendant) Criminal Law Practice Legal Group WorkCover Authority of New South Wales (Prosecutor) APJ Law (Defendant) File Number(s): IRC 1423 of 2011 Judgment 1Lonewood Farm Pty Ltd (the defendant) pleaded guilty to one offence under s 8(1) of the Occupational Health and Safety Act 2000 (2000 Act). The offence occurred on 18 September 2009 at a farming property called "Lonewood" located about 12.5 kilometres from Glen Innes. On that day, a director of the defendant, Andrew Francis Lane, was constructing the roof of a kit shed with the assistance of the defendant's part-time employee, Gordon Tilley. Mr Tilley fell about 4.2 metres through polycarbonate roof sheeting onto a concrete floor. He later died of his injuries. 2The amended charge against the defendant alleged that it failed to ensure: ..., by its acts or omissions as particularised below, the health safety and welfare at work of all its employees, and in particular Gordon Richard Tilley, contrary to section 8(1) of the Occupational Health and Safety Act 2000. ... The particulars of the charge are: 1. The defendant failed to provide a safe system for the work in that the defendant: (a) did not require anyone to identify the risk and the control mechanisms that were to be implemented in relation to the risk; (b) did not require anyone to systematically and accurately document the risk and the control mechanisms to control the risk; (c) did not consult with persons who had skills and qualifications in the work in relation to the risks to be identified and the controls to be put in place; (d) did not provide a warning in the form of a sign that the polycarbonate roofing panels were unable to weight bear; (e) did not ensure that Mr Tilley was informed about the need for fall protection whilst undertaking the work; (f) did not ensure that persons supervising and instructing Mr Tilley were adequately trained, instructed and informed on safe work at height to supervise and instruct Mr Tilley that he was not to work at height unless fall protection was in place; (g) did not ensure fall protection was used when working at heights in the vicinity of the polycarbonate roof sheets. 3"Fall protection" is defined in the amended charge as, "safety mesh, capable of preventing the fall of a person, installed under or over the non-trafficable polycarbonate roofing sheets on the shed". 4The particular task being undertaken by the two men at the time of the accident was the installation of ridge capping on the roof which, the Court understands, necessitated the men working on top of the roof while screwing down the roof sheeting. The polycarbonate sheets comprised part of the roof material. The remainder of the roof material consisted of corrugated zinc aluminium sheeting. The polycarbonate sheets were described in the Agreed Facts as non-trafficable, that is, they were not weight bearing. The risk relied upon in the amended charge was the risk of injury occasioned by falling from height (the roof) through the polycarbonate panels while the kit shed was under construction. 5The defendant, through Mr Lane, was aware of the risk posed by the presence of the polycarbonate sheeting on the roof. In an interview conducted by the prosecutor, Mr Lane outlined the steps he had taken to assess the risk associated with the polycarbonate sheets, which he described as "plastic sheets": What did you assess to be the risk? A83. I didn't consider at that point the height or pitch to be excessive, as long as we were aware. We both discussed the plastic sheets. He actually cut the sheets, they were a little to (sic) long, and cut them with household scissors, and we both talked about how light they were you could cut them with scissors. The biggest risk I considered was the plastic sheets. We discussed it one or two minutes before the accident. So you determined the plastic sheets were a problem? A84. Yes, they would not support weight. So you determined they were a problem? A85. Yes, any part of the sheet we agreed we would not stand on. They were fully fixed with the scissor lift except for the ridge. 6The Agreed Facts record the events immediately preceding the accident, which include Mr Lane at some point alluding to the risk posed by the polycarbonate sheets: As they walked along the roof Mr Lane pointed to the two sheets of polycarbonate skylight material and said to Mr Tilley "Remember those sheets". They both stepped over the sheets. Once at the Eastern end of the roof Mr Tilley started preparing the roof sheets for the installation of the ridge capping by making small upward turns to the edge of the sheet for water proofing. At approximately 7:50am Mr Lane walked the length of the shed to get a screw gun and a screw bag. Just as Mr Lane returned he heard a noise, and also a scream come from his son Patrick Lane. Objective factors 7At the time the defendant purchased the kit shed, Mr Lane was supplied with a 69-page Assembly Guide (the Guide). Page 3 of the Guide set out the following information: IMPORTANT PRIOR TO COMMENCING ASSEMBLY OF YOUR BUILDING KIT, ENSURE YOU HAVE: 1) Read the building site safety and health issues on the inside back cover 2) Checked that your Ranbuild Dealer has provided the following. A. Slab and/or footing plan B. Bill of materials C. Steel marking Diagram D. Cladding Location drawing E. Engineering documentation. 3. Checked all the materials supplied with your kit against the bill of materials (BOM). The above details and constructions (sic) sheets must be read in conjunction with this assembly guide 8Instead of providing the information referred to in the first instruction, (concerning safety and health issues), the inside back cover of the Guide provided to Mr Lane was blank. 9Mr Lane was also provided with a Bill of Materials which set out the components supplied in the shed kit. It included two 1,800 mm sheets of polycarbonate. There was no dispute between the parties that the appropriate safety measure for the activity of ridge capping was the use of safety mesh. Neither the Guide, nor the Bill of Materials, referred to safety mesh. The affixing of safety mesh under polycarbonate sheeting was required by Australian Standard AS 1562.3 - 2006, Design and Installation of sheet roof and wall cladding, Part 3 Plastic, at paragraph 2.4.3.2: The documentation supplied to Mr Lane did not refer to the Standard. 10Although Mr Lane had some experience in constructing sheds, having previously assisted in constructing three large sheds, none of those earlier constructions utilised plastic or polycarbonate roof sheeting. 11After Mr Lane took delivery of the kit shed, he returned to the supplier, D&D Sheds, to pick up the engineering plans. The plans which did not form part of the Guide, contained a single reference to the Standard in the following terms: All roof and wall cladding to be installed in accordance with AS 1562 and the manufacturer's instructions. 12In his interview, Mr Lane described the measures he and Mr Tilley discussed for undertaking the ridge capping of the roof. He said both he and Mr Tilley read through the "instruction manual". The day before, Mr Lane had fitted the roof utilising a scissor lift hired from a neighbouring farm. Mr Lane explained that the decision to utilise the scissor lift to fix the sheets, rather than tacking and screwing down the sheets while on the roof, was made because both he and Mr Tilley considered it was the safer option. The scissor lift could not be utilised, however, once the men commenced the ridge capping. The activity of ridge capping necessitated the men being physically located on the roof. 13This brief account of events preceding the accident reveal that the defendant had made some attempts to address the risks associated with constructing the roof, however, no adequate safety measures were devised or implemented for the ridge capping. As a result, Mr Tilley was physically located on the roof without any form of fall protection. Indeed, it appears that the only step taken by the defendant, through Mr Lane, to address Mr Tilley's safety while he was on the roof was to caution him to, "remember those sheets", a reference to the two sheets of polycarbonate. As a safety measure, this was clearly insufficient. 14It was submitted on the defendant's behalf that it did not "barge about regardless". Instead, steps were taken to address safety issues, although it was acknowledged that the steps taken were inadequate. It was also submitted that the appropriate safety measure, namely, the use of mesh, was not obvious because the documentation supplied to Mr Lane made no reference to it. 15In the Court's view, the absence of any reference in the documentation to appropriate safety measures to be implemented for the construction of the roof of the shed, in particular, should have alerted the defendant to the need to make some enquiries. The Guide, which Mr Lane had read before the construction commenced, directed the defendant's attention to safety issues on the inside back cover, although the relevant page was blank. Moreover, the defendant, through Mr Lane, was aware of the risk posed by the polycarbonate sheeting. Despite this, the ridge capping activity was undertaken by Mr Tilley without the benefit of any fall protection. The Court accepts the defendant's submission that some attempts were made to address safety issues associated with the construction of the roof. To an extent, the defendant's attempts to address safety issues operate to mitigate the objective seriousness of the offence. However, the risk of falling through the polycarbonate sheets was known to the defendant, and was obvious. A fall through the polycarbonate sheeting carried with it the real potential for serious harm. Mr Tilley was fatally injured when he fell some 4.2 metres through the polycarbonate sheeting onto the concrete floor. The risk arose directly from the defendant's failure to make available fall protection in the form of safety mesh while Mr Tilley was working on the roof. It was also open to the defendant to have taken steps to properly address the risk. Readily available safety measures are reflected in the particulars of the amended charge. Having identified the risk, the defendant should have, and could have, for example, consulted with suitably skilled and qualified persons about appropriate safety controls to be put in place while working on the roof of the shed undertaking the ridge capping. These matters in combination compel the conclusion that the offence was objectively serious. General deterrence 16The circumstances of this matter exhibit a strong case for general deterrence. The construction of the kit shed was outside the defendant's normal sphere of business operations. The documentation which accompanied the materials was deficient. This may have been a failure on the part of the manufacturer, Ranbuild. No submissions were made by the defendant which might otherwise have required the Court to assess whether Ranbuild, which the Court understands was not prosecuted in relation to the incident, contributed to the circumstances of the accident because it supplied incomplete documentation. In any event, it was generally acknowledged by both parties that there was insufficient information before the Court upon which such an assessment could be undertaken. What is relevant to the issue of general deterrence is that notwithstanding deficiencies in the documentation supplied to the defendant, this incident serves to emphasise the importance of implementing appropriate safety measures in circumstances where persons who lack the relevant professional skills and qualifications undertake construction work at height. The failure to put in place necessary safety measures in these circumstances may result in severe penalties under the occupational health and safety legislation. Specific deterrence 17There is no doubt that this tragic accident has had a profound affect on the defendant. The defendant is a small family company with two directors, Mr Lane and his wife, Leah. In his affidavit, Mr Lane explained that after the accident, he and his wife started the process of winding down all farming operations on the property, "in order to reduce the inherent risk of operating farming plant and equipment". Mr Lane regarded Mr Tilley as a good friend, as well as a valued employee. Because of the accident, Mr Lane said that although he is a third generation farmer, the decision to wind down the farming operations was made because he, "cannot face even the remote possibility of being involved with another incident like this again". 18Immediately after the accident, Mr Lane arranged for an independent contractor to complete the construction of the kit shed on behalf of the defendant. The prosecutor acknowledged that the defendant took steps to minimise the risk following the accident. This matter, together with the defendant's decision to wind down its farming operations, makes it unlikely that the defendant will re-offend. Nevertheless, a small component of the penalty should be included to take into account specific deterrence primarily because the defendant continues to operate various businesses, including an online lapidary business. Maximum penalty 19The defendant is a first-time offender under the occupational health and safety legislation and, as a corporation, faces a maximum penalty of $550,000. Subjective factors 20The prosecutor conceded that the plea of guilty was entered at an early stage. In the Court's view, entering of the plea of guilty at the first reasonable opportunity entitles the defendant to a reduction in penalty of 25 per cent. The prosecutor also acknowledged that the defendant co-operated with WorkCover in the course of its investigation into the offence. The Court also takes into account in mitigation of penalty the post-accident measures taken by the defendant to obviate the risk, namely, the engagement of a sub-contractor to complete the construction of the kit shed. 21The Court also takes into account in mitigation of penalty the defendant's contrition. The defendant, through Mr Lane, accepted full responsibility for its failure to ensure Mr Tilley's safety. In his affidavit, Mr Lane said: I understand and accept that Gordon was under my care and I failed in that responsibility. If I had an understanding of the Australian Standard or been aware of the existence of safety mesh I would have adopted those safety measures. Given, the number of tools we used in the erection of the shed prior to the day, safety mesh, which I now understand is a relatively inexpensive item, could have easily been included in a kit shed of this size. The effects of this tragic accident have dealt a severe blow to myself, my partner and Wife Leah and our two young boys, Angus and Patrick, who were all witnesses to the accident. It is clear this ... event will affect us all for the rest of our lives. It is very difficult for me to remember giving first aid until the ambulance arrived and knowing those efforts were in vain. Gordon was not just a worker but a good friend and so we have had to deal with the grief of losing both a friend and a valued employee in addition to the legal consequences. This has been difficult for Leah who had worked closely with Gordon for over ten years at the Agriculture Research Station for the New South Wales Department of Primary Industry. Even more than Leah my youngest son Angus has suffered greatly. Gordon and Angus spent hours in "men's talk" about fishing and sport at every opportunity. Angus still suffers occasional nightmares and behaviour problems since the accident although thankfully less frequent now compared to the first eighteen months. My older son Patrick although deeply traumatised at the time, appears to have managed to block out most of the details of the accident and has probably coped the best of all of us. I will never forgive myself for allowing this terrible accident to happen. Ultimately Gordon was under my care and I failed in my responsibility to keep him safe. The accident has affected all of us terribly. Even after almost three years I still suffer daily vivid recalls of the accident. The severity of the attacks varies from just a few minutes of deep sadness to days of being depressed and angry. My local GP has been very supportive over the entire period and although he has strongly recommended that I seek extra psychological help, I have declined partly due to the costs and time, neither of which I can afford right now. Of course our greatest concern has been for Gordon's family - one of the most important things about Gordon was his commitment to and love for his family. I know this period has been extremely painful for his wife Sue and the rest of his family - it has changed their lives forever. I wish every day that they could be spared that suffering and offer my deepest sympathy for their loss. I would also like to express my gratitude towards the Tilley family - despite their grief they have always treated us with courtesy and understanding and for that we are very grateful. I am truly sorry for what happened. Financially, this has been a difficult period. We have worked extremely hard for almost three years to put aside some savings to put towards the penalty and legal costs. Prior to this accident, we were trying to build our business for a better future for our family but this event has changed our attitude completely. I have found it too debilitating to continue with our farming business. Every single thing I do now is viewed within the context of the accident. After the accident we employed a Licensed Builder to complete the shed. I cannot to this day climb a ladder, let alone go onto a roof, and we have made it policy that none of our family or employees will do anything that involves working at heights. Since this incident we have increased the use of qualified contractors to assist with the farming work and are working to try and reduce OH&S risk in all of our activities. ... I am certain that I will be troubled by this incident for the rest of my life. I was present using my best endeavours to save a person whom I considered a friend knowing that all my efforts may ultimately be hopeless. Watching a friend die, in such circumstances, is an experience that cannot be adequately described in words. 22The absence of prior convictions entitles the defendant to leniency normally extended to an offender not adversely recorded. 23The defendant, through Mr Lane, has shown good industrial citizenship, which also operates in mitigation of penalty. Testimonials attached to Mr Lane's affidavit describe him as hardworking and trustworthy. According to the testimonials, Mr Lane regularly volunteered his services to help the community through his work with the NSW State Emergency Service and his active membership in the Deepwater Rural Fire Brigade. 24The defendant tendered into evidence its financial records to support a submission that it had the capacity to pay no more than a modest fine. It was submitted on behalf of the defendant that it was a small family company operating more as a partnership, than a corporation. The Court's attention was directed to taxation records which disclose that the profits of the trust are distributed to the beneficiaries, Mr and Mrs Lane, who in turn pay income tax at the personal rate. The practical effect of this arrangement, it was submitted, is that the defendant's business is conducted by individuals who are effectively, the employers. In addition, the financial records reveal that the drawings (the earnings) are quite modest. 25The prosecutor accepted that the defendant's business was on a small scale and that the profits were modest. 26The financial records show that the defendant operated several small businesses at the time of the offence, some of which made a small profit and others, a loss. The trust tax return for the financial year ending 30 June 2011 shows a total net income of $44,940, which, by any standards, represents a modest income. Taking into account these matters, and noting the absence of any dispute between the parties on this issue, I conclude that the defendant is capable of paying a modest fine, which I intend to take into account when imposing penalty. Victim impact statements 27The Court also received victim impact statements from Mr Tilley's wife, Sue Tilley, and their two daughters, Carmen and Karen. The statements reveal the heartbreak and terrible loss felt by Mr Tilley's family following his tragic death. Mrs Tilley spoke of her love for her husband and her loneliness following his death. Carmen and Karen also spoke of their love for their father and their sense of loss and grief. They also expressed concern for their mother. Carmen wrote that her mother struggles on a daily basis and suffers depression. 28All these matters attest to a close family deeply affected by the loss of losing a husband, father and grandfather. The Court can only express its deepest sympathies for such a profound loss and hope, for the family's sake, that they will continue to support each other so that perhaps in time the sense of loss will become easier to bear. Penalty and orders 29In determining penalty against the defendant, I have taken into account the objective seriousness of the offence, the personal factors outlined above, as well as the absence of prior convictions. All these factors have been considered by reference to the Crimes (Sentencing Procedure) Act 1999, in particular, s 21A. I have also taken into account on sentence, the defendant's capacity to pay a modest fine. 30In IRC 1423 of 2011, the Court makes the following orders: (1) The defendant is convicted of the offence. (2) The defendant is fined $65,000 with a moiety to the prosecutor. (3) The defendant is to pay the costs of the prosecutor as agreed or, in the absence of agreement, as 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: 18 January 2013