WorkCover v Allworth Constructions Pty Ltd [2014] NSWDC 184

District Court New South Wales

Medium Neutral Citation: WorkCover v Allworth Constructions Pty Ltd [2014] NSWDC 184 Hearing dates: 27/08/2014 Decision date: 27 August 2014 Jurisdiction: Criminal Before: Curtis J Decision: The defendant is convicted and fined $72,375. Legislation Cited: Occupational Health and Safety Act 2000 Category: Sentence Parties: WorkCover Authority of New South Wales (Inspector Moore) (Prosecutor) Allworth Constructions Pty Ltd (Defendant) Representation: M Moir appeared for the Prosecutor K G Bennet appeared for the Defendant WorkCover Legal Group (Prosecutor) Bridgeford & Associates (Defendant) File Number(s): 2013/147435

Judgment 1On 2 September 2011 Mr Kenneth David Horsnell suffered serious injuries when he fell through a void in the first floor of a house construction site at Harrington Grove. The defendant Allworth Constructions Pty Limited had contracted to build the house and was responsible for the operations at the site. 2The defendant pleads guilty to the charge that contrary to s 8(2) Occupational Health and Safety Act 2000 it failed to ensure that Mr Horsnell, a person who was not an employee, was not exposed to risks to his health. 3In particular the defendant admits that it failed to ensure that secure perimeter screens, fencing, handrails or other forms of physical barriers were installed prior to Mr Horsnell coming on site; that the defendant failed to conduct an inspection of the void to ensure that it was securely covered prior to Mr Horsnell coming on site; that the defendant failed to ensure there was a written safe work method statement in place before working near the void that is required by regulation 227 Occupation Health and Safety Regulation 2001. 4The defendant company is a residential building company carrying on work in New South Wales at the time on approximately 15 different locations. The company has been in business for 35 years. 5The system pursuant to which Allworth constructed two-storey houses was that a concrete slab would be laid, frame walls erected and then bricklayers brought in to construct the outer walls of the lower floor and install joists to constitute the second floor. Those joists would leave voids in relation to those penetrations through which staircases were to ascend. 6After the bricklayers had completed their tasks, subcontractor carpenters would come on the site in order to install the flooring and the frames of the second story. The system envisaged that once the floor and frames had been erected a proprietary system devised by Oldfields Advanced Scaffolding would be installed to occlude the void and protect persons from falling into it. 7The Oldfields system was necessarily to be removed prior to completion of the house and because of this the brackets which supported the system were placed on top of the plates constituting the framing of the first floor. Had the flanges been installed before the framing went up the Oldfields system could not be removed. 8The problem thereby created was that for a period of perhaps one day while the floor and framing was installed the void was uncovered and unprotected unless it was first protected by handrails and foot guards. 9On the morning of the day in question - the day before the accident, Mr Adamson, the site supervisor employed by Allworth, contacted the subcontractors Mr Tesoriero and Mr Wormald, who traded as Teswor Pty Limited, and asked that they come on site to complete the framing. 10On that day Mr Adamson inspected the site at about 8am and completed a site specific risk assessment. In that he noted that all four zones were unprotected and that the stairwell and open penetration protection system had not been installed. The form which he completed included this advice: If you answer no to any of the items above you must complete the risk assessment table below and consult with all employees and subcontractors before commencing any work. If you cannot remove or control the hazard please contact your construction supervisor for advice before starting any work. 11Mr Adamson did not require of Mr Tesoriero or Mr Wormald a safe working plan and left the site. 12Mr Adamson and Mr Wormald took no steps to protect the void by the erection of a temporary security perimeter fence. Later in the day Mr Horsnell, who operated a business as a crane operator, attended upon the site for a delivery and ascended a ladder to the first floor where Mr Tesoriero and Mr Wormald were working in order to obtain their signature to a docket proving the provisions of his services. 13While there he asked them if he could keep some surplus timber and apparently as a gesture of good will assisted them in the erection of a frame. In the course of this assistance he stepped back, fell through the void, and suffered severe injuries including brain damage. 14The prosecutor submits that the objective gravity of the offence is to be weighed against both the potential for harm, which included possibility of death, and the actual harm suffered by Mr Horsnell. 15Mr Horsnell's injuries were grave. He is profoundly disabled with no insight into his injuries. He is left with memory and sensory impairments and emotional liability. He will never work again. He was forced to sell his company because of his inability to work which he had established over 30 years. He is permanently reliant upon his family for ongoing support and care. 16The gravity of the offence is also to be weighed against the foreseeability of the risk and the ready practicality with which it may have been avoided. In this case Mr Adamson actually foresaw the risk and noted that upon his sheet. Having foreseen it he took no steps to avoid it. The protection provided by handrails sufficient to obviate the risk occupied no more than five minutes of work following the injury. 17Because the building trade and multi-storey buildings are notoriously associated with dangers it is necessary that general deterrence be reflected in this sentence. It is also appropriate that the penalty reflect denunciation by the Court of the offence in the light of the circumstances of Mr Horsnell. 18It may be accepted this specific deterrence has a very limited role in the calculation of the penalty because following upon this injury Allworth has adopted an alternate system to cope with the possibility of voiding building work and that new system, which provides scaffolding before any work is carried out on the first floor, engineers out any possibility of there being unguarded void.