District Court New South Wales Medium Neutral Citation: WorkCover Aurtority of NSW v Australian Native Landscapes [2014] NSWDC 183 Hearing dates: 11/09/2014 Decision date: 11 September 2014 Jurisdiction: Criminal Before: Curtis J Decision: The defendant is convicted and fined the sum of $33,382.00 Legislation Cited: Occupational Health and Safety Act 2000 Category: Sentence Parties: WorkCover Authority of New South Wales (Inspector McDonald) (Prosecutor) Australian Native Landscapes (Defendant) Representation: M P Cahill appeared for the prosecutor A R Moses, SC with P Keyzer appeared for the defendant DLA Piper (Prosecutor) Berry Buddle Wilkins (Defendant) File Number(s): 2012/293511 Judgment 1The defendant pleads guilty to a charge that on 18 March 2011 at Badgerys Creek it failed by its acts or omissions to ensure the health, safety and welfare of its employees, in particular Mr Anthony Kozicki and Shane De Graaff contrary to the provisions of s81 of the Occupational Health and Safety Act 2000. 2On that day a Mr Ryder, a plumbing contractor, attended upon the premises of the defendant's plant to replace certain parts of the roof. At Mr Ryder's request Mr Lennox and Mr Johnson, the defendant's managers, directed those two employees to assist with the work. 3In the course of the works the ladder by which the employees gained access to the roof was not properly secured, no provision was made for provision of handrails or other physical barriers to prevent falling from the roof, and safety harnesses were not provided. 4In consequence of these omissions Mr Kozicki fell through the roof a distance of approximately five metres to the floor below suffering a fractured left pelvis, two punctured lungs and four fractures of his left arm together with cuts and abrasions to his head. Mr Kozicki has undergone 11 operations on his wrist and apparently he has been left with permanent disabilities. The Prosecutor's Submissions 5The prosecutor submitted that objectively the offence is quite serious because of several factors. First, the substantial injuries suffered, and the possibility of even greater injuries. Secondly, the construction industry is a notoriously dangerous industry, and the specific dangers of working at heights are the subject of detailed regulatory provisions. 6The prosecutor submits that the subject risk was capable of being virtually eliminated by the adoption of relatively simple and well-known precautions. These matters in the submission of the prosecutor call for the imposition of a significant penalty. 7Further, the risks could have been avoided had the defendant's site managers adhered to the site safety manuals that established plans, policies and procedures to make the workplace safe. It is submitted that the failures of Mr Lennox and Mr Johnson to identify and address the particular risks fundamentally called into question the adequacy of the defendant's occupational health and safety system. 8Counsel for the prosecution makes the obvious submission that general and specific deterrence are required in relation to failures such as are evidenced by this accident. 9The prosecutor accepts that the defendant pleaded guilty at the first available opportunity and has expressed appropriate remorse and contrition and has cooperated with the prosecution. The Defendant's Submissions 10The defendant submits that this is not a case in which the defendant did not advert to the need to conduct its operations safely. There was a preexisting commitment by the defendant to occupational health and safety and accordingly there is no significant requirement for specific deterrence in this case. 11In particular the defendant's pre-existing site safety rules recognised that work to be performed at height required compliance with both legislative requirements and relevant codes of practice. The defendant had devised, instituted and, apart from this incident, apparently maintained a commitment to safety. 12The fault is the fault of Mr Lennox and Mr Johnson to apply the defendant's system in the instant case. The system required that Mr Ryder, before commencing the work, prepare a safety management plan. The system required that in the execution of that plan the rules relating to working at heights be observed. 13I think the three most salient factors in the instant case are: (a) This is not a case in which there was no system. It was a case in which by a casual act of negligence the defendant's managers responsible for the implementation of that system, failed in their duty. (b) The defendant is not in the construction industry. The risk that came to pass was not a risk inherent in the nature of its operations. (c) It is necessary in the imposition of penalty to identify a natural person who is culpable and to measure the culpability of that person against the standard of a reasonable man, bearing in mind his authority in the company hierarchy. 14Mr Moses submits that "This Act cannot safeguard against idiocy". Although this submission overstates the position, and I do not regard the conduct of Mr Lennox and Mr Johnson as amounting to idiocy, I accept that their conduct does not reflect an institutional failing at a senior level of management. 15It was nevertheless a culpable departure by the persons entrusted by the defendant company to discharge its responsibilities under the Act. 16The defendant employs hundreds of workers at multiple sites and has traded for 30 years. In all of this time it has one conviction. While not perfect, I accept that this is a commendable record. Conclusions 17The injuries suffered by Mr Kozicki call for recognition, denouncement and the need for general deterrence. The close attention by the defendant to its health and safety obligations before this accident limit the need for specific deterrence. The maximum penalty is $825,000. In all the circumstances I believe an appropriate penalty is $90,000. 18The defendant is entitled to a reduction of 25% in consequence of subjective factors bringing the amount to $67,500. 19I note that the defendant has agreed to pay the prosecutor's costs in the sum of $34,118.17. This constitutes an imposition and a penalty imposed upon the defendant in consequence of its breach. I believe that the appropriate penalty should not be compounded by those costs. From $67,500 I deduct $34,118. 20The defendant is convicted and fined the sum of $33,382.00. I order the defendant pay the costs of the prosecution in the sum of $34,118.17. I order that a moiety of the fine be remitted to the prosecutor. 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: 31 October 2014