District Court New South Wales Medium Neutral Citation: Workcover v Robertsons Painting and Decorating P/L [2014] NSWDC 230 Hearing dates: 4 June 2014 Decision date: 10 June 2014 Before: Judge MJ Finnane QC Decision: See paragraph [46] Catchwords: CRIMINAL - workplace prosecution - duty of employer - duty to ensure health, safety and safety of employees - duty to ensure safety of non-employees whilst on defendant's premises SENTENCE - plea of guilty - appropriate discount - mitigating factors - circumstances - remorse OTHER - machinery - elevated work platform - agreed statement of facts Legislation Cited: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 Category: Principal judgment Parties: Workcover Authority (Prosecutor) Robertsons Painting and Decorating (Defendant) Representation: Mr M Cahill (Prosecutor) Mr M Hutchings (Defendant) Workcover Authority (Prosecutor) File Number(s): 2013/14401; 2031/14430 Judgment 1The defendant company Robertson's Painting and Decorating comes before this Court charged with two offences, one under s 8(1) of the Occupational Health and Safety Act 2000, a claim that it failed to ensure the health, safety and welfare of all its employees, and in particular to Igor Kostanyuk and Ramy Osman. 2And a second summons was brought that has to be dealt with, alleging a failure to ensure that persons not in its employ, in particular Andrew Scott Baker were not exposed to risks of safety arising from the defendant's undertaking while they were at the defendant's place of work contrary to s 8(2) of the Occupational Health and Safety Act 2000. 3This Act which has been repealed which remains in force for offences of particular types provides in s 8(1) that "An employer must, so far as is reasonably practicable, ensure the health, safety and welfare at work of all its employees." There are particular duties that are set out ensuring any premises controlled by the employer where the employee works is safe and without risk to health. Ensuring any plant or substance provided by use of the employees is safe and without risk to health. Ensuring that systems of work and the working environment of the employees are safe and without risks to health. Providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work. 4Section 8(2) provides that an employer must as far as reasonably practicable ensure that people other than the employees are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work - . DUNCALF: Your Honour, I don't mean to interrupt, just in relation to the sections that your Honour is reading, the concept of so far as reasonably practicable wasn't part of this particular Act at the time of the offence. These offences occurred in January 2011. HIS HONOUR: Yes. DUNCALF: The concept of "reasonably practicable" wasn't implemented until June, into those particular sections until 2011. It is not part of the summons which are before your Honour. I'd just thought I'd raise that with your Honour. HIS HONOUR: Okay. Thank you for drawing that to my attention. 5The defendant is not charged with the breach of duty alleging that he failed, or it failed, so far as is reasonably practicable. However, the other particulars, it is charged with: It has no previous convictions. It is exposed to a maximum penalty of $550,000 for each offence. There was a plea of guilty that was entered into at the earliest opportunity. That has the consequence that any penalty should be ameliorated by 25% to reflect that early plea of guilty. 6The parties agreed to a statement of facts. The statement of facts understandably dealt more with the offence under s 8(1) because that offence resulted in the death of a man. The other offence was rather directed towards the risk of injury to a person who happened to be near the site of the accident. The defendant company is a painting and decorating organisation and substantially it is run by Mr Leslie Robertson the managing director who has provided two very lengthy affidavits with annexures. The company at the time of the accident was engaged in painting work on a building. At the time the company had approximately 25 employees and engaged 20 painters as contractors. The company itself, I am satisfied, did have regard to Occupational Health and Safety normally. It spent a great deal of time and effort before the unfortunate death of Mr Osman, the man killed in this accident, in putting into place all types of Occupational Health and Safety Policies. 7The annexures to Mr Robertson's affidavit, which unfortunately does not have a date on it but apparently may have been signed on or sworn on 27 May 2014, indicates the steps that the company has taken over many years to ensure that it operated safely. Since the death of Mr Osman the company has taken further steps to tighten its procedures and ensure that events of the type that did take place would not take place in the future. The company itself is fully responsible for safety under the legislation. It cannot delegate its responsibilities to employees. 8One of the employees who obviously failed in his duties on this day was a Mr Alameddine. Mr Alameddine was the subject of separate proceedings but appears to have left the country. However, the company cannot urge as a factor to be taken into account in its favour that Mr Alameddine acted negligently and carelessly and did not do his duty. 9It was their duty to ensure that he did do his duty. It was their duty to ensure that he acted properly, they failed to do this. There was a supervisor and that supervisor had been trained in every aspect of the business, including Occupational Health and Safety but before the date of the accident, 24 January, he had not read the whole of the documented Occupational Health and Safety system of the company but had some understanding of it. 10One of the problems in my experience with many companies is they can have very extensive documentation covering all sorts of aspects of their business. They can have systems where people are required to sign acknowledgements they have read these particular systems but that is not good enough. 11When it comes to Occupational Health and Safety and particularly where companies are engaged in activities which have dangers in them they cannot rely on written documents signed by people and procedures in thick manuals. There are many organisations that do this and very often fail and find to their cost that terrible accidents happen. I am not going to name the organisations but some of them are in fact Government organisations. 12What happened on this particular day was in essence very simple. Two painters were required to go onto an elevated work platform which extended above 11 metres and work on the side of a building. Neither of them were given any training in the work of the platform apart from some cursory instructions by Mr Alameddine. Neither of them were supplied with safety harnesses or required to use them. Neither of them had a certificate of competency to operate the equipment although the law required they had one. 13The operating instructions issued by the hiring company that owned the equipment made it perfectly plain that if the equipment was on a slope of more than 5% an alarm would ring and those using the equipment should immediately desist from using it and rectify the problem of the slope as this equipment was not made to stand on slopes. Neither of the men working on this equipment were told anything about the alarms. There was a sign on the side of the equipment, whether either of them read it or not, who knows. The alarm, according to the facts, rang loudly and frequently while one or other of these men was in the air but neither of them did anything, presumably because they did not know the significance of the alarm. Ultimately, the platform fell. There are photos that show in a very stark way exactly how it fell. 14Mr Osman was thrown from the cab, if one can call it that, at the top of the arm, He was not wearing a safety harness and was killed. Mr Kostanyuk had been on that same piece of equipment a number of times, he was not killed, he was not injured when this fell but he could well have been injured or killed. Mr Andrew Scott Baker who was an electrician was working on the ground in adjoining premises. When the equipment came down he managed to get away so that it did not strike him but clearly it could have. Both Mr Kostanyuk and Mr Osman were quite fearful of working on this device and had expressed that fear to one another. 15Mr Alameddine should have prevented them from working on this device because they did not have licences and they did not have safety equipment in the form of harnesses, nor were they wearing hard hats. If he failed to do that as he did, Mr Furnell should have done something about it, and ultimately, Mr Robertson should have done something about it. 16The plain fact of the matters is that people who had no competence to operate this equipment and who in fact were debarred from operating it, were operating it, they did not obey the safety direction because they did not know they existed, and disaster happened, one of them was killed and a nearby worker who was not employed by the company could have been injured as well. These facts are very stark. 17It is surprising one sense that they are so stark as the company had been operating for many years without incident and safely, it has no previous conviction, it has won various awards and the like for the way in which it conducts itself. What happened this day was a major breach or were major breaches of its duties under the legislation. 18In the period since the accident the company has co-operated fully with the WorkCover Authority and has spent a considerable amount of money to put into place new safety procedures; Apart from written programs those safety procedures are also reinforced by toolbox meetings which are held regularly. 19Exclusion zones are placed around these platforms if they are used. 20Only licensed people are allowed to use these platforms. 21All workers working at height have to wear harnesses. 22All workers have to wear fluoro vests while using machinery or scaffolding. 23Every site is checked and double checked and spotters are employed to stand on the ground and look at people who are working at height. 24Supervisors check jobs. 25If people are not complying with what they are required to do those workers are removed from the job. 26They have a "Three strikes and you're out" policy. 27Two warnings are given. If they are not heeded and another one is then given the worker is dismissed and that has occurred, one worker has been dismissed. 28One of the consequences of the accident is the workers compensation premiums the company had to pay went up markedly. Pre-accident they were paying something like $53,000. After the accident it went up to $220,000, and then the year after that $228,000, then started to drop to $178,000, and has now dropped to $71,000 and that reflects, according to Mr Robertson, and I would accept that, an assessment by the insurance company that the company's policies, for safety have been now implemented. Mr Robertson provided information that the cost to the company after this incident, doing things to make sure there was safety, are very considerable and amounted to an investment of $473,000. That, including, $240,000 for engaging an employee as an Occupational Health and Safety Officer. 29The company also incurred very large legal fees of some $270,000 as a result of the incident, has paid out $1,441,899.18. Mr Robertson who is 61 has delayed his retirement because of all these problems. 30Attached to the affidavit are various schedules indicating steps taken to implement Occupational Health and Safety. All of these steps are commendable. What Mr Robertson and his employees have done since the accident is obviously very desirable. It is obvious, too, from my reading of his affidavit that he and his company have been engaged for many years in very large projects and I would accept that may have done so without incident. 31He has also provided information of a financial nature showing the profit and loss of the company for each year from 30 June 2010. In 2011 to 2012 a loss of $871,000-odd was incurred and a lot of that resulted from this unfortunate accident. It has a capacity to pay a fine or fines but obviously does not want to pay the maximum fine that could be imposed. Extensive submissions were put to me both orally and in writing. I have read those submissions and I have heard the oral submissions. 32When sentencing anyone for any offence, and these are offences, the Court has to have regard to a number of important sentencing principles. First of all there are the principles of deterrence, specific and general. That is to say, imposing a penalty that deters the defendant individually from committing such an offence again. Principles of general deterrence are aimed at ensuring that penalties are of such a nature that anybody who might be tempted to commit a similar offence would be deterred from doing so. 33There is then the important principle of retribution, which does not mean vengeance, it means fixing an appropriate penalty for the seriousness of the offence. And finally, there is the principle of rehabilitation. If the defendant can be rehabilitated or has been rehabilitated that ought to be taken into account as well. Generally, the maximum penalty for any offence should not be imposed, except in rare cases, where the offender has committed the offence for the first time. Generally the maximum comes into play where the offender has offended more than once. 34What is unusual in this industrial legislation is that if an offender offends more than once, the offender is then liable to even bigger penalty of $825,000. Normally at Common Law there is one maximum penalty, not two. Industrial Law has a different approach. So I have to assess the seriousness of this matter. I have to look at the objective facts as well as the subjective features to which I have referred. Objectively these are very serious breaches, particularly the breaches pertaining to the death of Mr Osman. What happened on this day was done in complete defiance of all safety requirements, it has to be said. The company that hired the equipment made it plain what safety requirements had to be followed, they were not followed. The law required that only licensed people operate the equipment. The law required that people who operated from a height should wear safety harnesses and hard hats, that was not done. 35If the workers themselves want to behave stupidly then it is up to the supervisors to stop them doing it. It is not good enough just to have a set of procedures in a manual and get the workers to sign them. The supervisors have to apply what I would call the idiot test. If somebody behaves in idiotic fashion they have to stop them. And allowing a man to go as an unlicensed worker on a piece of equipment like this without a safety harness, working on a slope with alarms ringing is pretty idiotic, the supervision was non-existent. 36So I have to conclude that this normally very safe organisation on this occasion just utterly failed in its duties and that lead to the death of a man and the possible injury to two others. The question is, what should be done? I am required to impose a penalty that sufficiently punishes the conduct, that is, satisfies the principles of retribution and acknowledges also principles of deterrence. That requires me to impose a significant fine for the major matter and a lesser fine for the other one. The organisation continues. The organisation continues to employ people and the organisation is normally safe. 37It would be inappropriate to impose anything like the maximum penalty because that would be likely to drive it out of business and would be a punishment in excess of what should be imposed. However, a severe enough punishment needs to be imposed to indicate to anybody engaged in the building industry that mere compliance with rules about having safety procedures on paper is not good enough, and so; 38For the offence under s 8(1) I impose a fine of $150,000, and for the offence under s 8(2) I impose a fine of $10,000. I order the defendant to pay the agreed costs of WorkCover and I order a moiety of 50% of the fines to be paid to WorkCover. ********** 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: 11 December 2014