WorkCover Authority of NSW v Build Corp P/L [2014] NSWDC 284

District Court New South Wales

Medium Neutral Citation: WorkCover Authority of NSW v Build Corp P/L [2014] NSWDC 284 Hearing dates: 11 November 2014 Decision date: 11 November 2014 Jurisdiction: Criminal Before: Curtis, J Decision: The defendant is convicted and fined Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) Buildcorp Group Pty Ltd (Defendant) Representation: Counsel: M Moir appeared for the Prosecutor M Tooma appeared for the Defendant Solicitors: WorkCover Authority of NSW Legal Services (Prosecutor) Norton Rose Fulbright Australia File Number(s): 2012/297677 Publication restriction: None

Sentence 1. The defendant Buildcorp Group Pty Limited pleads guilty to the charge that on 28 September 2010 at Pyrmont it failed to ensure that persons not in its employment, in particular Mr Adam Cash and Mr Steven Holsworth, were not exposed to risks to their health and safety. The offender is convicted. 2. The defendant contracted with the Owners Corporation of a large apartment complex to effect repairs to the building for a price of $3 million. Buildcorp engaged Peninsula Projects to perform remedial brickwork, it also engaged Now Access and Scaffolding Solutions Pty Limited (Now Access) to supply and install two side scaffolds with stair access and two material hoists with swing stages and ancillaries. 3. Now Access engaged C & H Hoist Installation (Hoist) to provide the material hoists. On 20 April 2010 Hoist partly installed the relevant hoist on Harris Street North. Installation was not completed because Now Access had not completed the landing platform on level 7. The further work required was provision of locking gates to exclude unauthorised persons from operating the lift. 4. Although Mr Gray of Hoist advised Now Access workers on site that the hoist was not fit for use a key was left in the hoist. Thereafter the hoist was used by various workers on site because there were no gates to prevent access. 5. On 28 September of 2010 Mr Reay, an employee of Peninsula Projects, together with a loaned apprentice, Mr Barton, used the hoist to elevate their working tools to level 7. Mr Reay knew that a licence was required to operate the hoist but nevertheless instructed Mr Barton, then aged 19, to elevate the hoist to raise the equipment. 6. Employees of Now Access had left a roll of blue mesh on the hoist for use later that day. This roll protruded over the platform edge. The operating instructions for the hoist prohibited the use of the hoist if any material protruded over the platform edge. 7. When the hoist was elevated by Mr Barton the roll of mesh became entangled with scaffolding at level 7 causing an eight foot steel scaffold board to fall from level 7 to the landing of the hoist at level 1. It struck a glancing blow to Mr Holsworth on his arm causing minor scarring and bruising but struck Mr Cash on the head. 8. Mr Cash was knocked to the ground unconscious and taken to Royal Prince Alfred Hospital by ambulance. X rays revealed fracture of the T2 vertebra and injuries to his C5, C6 and C7 nerve roots. He has continued to suffer from pain and limitations of movement. He has developed post-traumatic stress syndrome and an alcohol disorder. He now relies upon his parents who have taken him in together with his two young children, his marriage having failed. 9. The accident has had a dramatic impact on the life of Mr Cash. That circumstance should be reflected in the penalty. 10. The failures by Buildcorp were manifest. Buildcorp personnel on site included Mr Nicholas Clarke, the project manager, Mr Bill Hutchinson the project supervisor and Mr Mick Ivancic a leading hand. Mr Hutchinson was responsible for checking the hoist, despite having no experience operating or inspecting hoists and not holding a certificate of competency. The site specific safety plan of Buildcorp required a qualified personnel project supervisor to check the working condition of the hoist and that the hoist could only be operated by a qualified person. 11. A hoist installation checklist document was required by Buildcorp in relation to the installation of the hoist. Mr Ivancic has never signed or sighted any checklist document for the Harrow Street hoist. Significantly both Mr Ivancic and Mr Hutchinson were aware that non ticketed or non-nominated persons were using the hoists. Neither Mr Hutchinson nor Mr Ivancic challenged any person or took any steps to avoid that practice. 12. Apparently Mr Clarke, the project manager on site, was not notified and was not aware that there had been no hoist handover checklist or that unauthorised persons were using the hoist. The circumstances in which Mr Clarke the project manager on site remained ignorant are unexplained. 13. I accept that Buildcorp had in place documented safe working systems which were on this occasion ignored by Mr Hutchinson and Mr Ivancic and apparently not enforced by Mr Clarke. I accept also that the defendant's system required that their systems were independently audited and an audit performed before this accident at the request of Buildcorp wrongly recorded that only licensed persons were using the hoist. The circumstances in which that audit was conducted remain unexplained. 14. The building industry is notoriously dangerous and notwithstanding the fact that Buildcorp had a good record prior to this incident and was aware of its obligations it is necessary to reflect the need for general deterrence in the penalty. 15. There is, I accept, a limited need for specific deterrence because of the extent of work the defendant has done in addressing the perceived defects in its systems of safety. 16. It is necessary that the penalty serve as a denunciation of that conduct which caused such catastrophic injuries to Mr Cash. Subjective circumstances should also be addressed. The defendant has been working in a dangerous industry for ten years without any prior convictions. It is true that it did establish a system to address dangers and that the circumstances of this event were because of the gross failure to follow that system. The defendant is of particularly good character, it has received awards for safety on specific sites, it contributes six per cent of its income to charities and matches dollar for dollar contributions of its employees to other charities. 17. Were it not for these subjective factors I think the penalty would be far more substantial. 18. An appropriate penalty is $100,000. In recognition of remorse, contrition and co-operation with the authorities and an early plea of guilty the defendant is entitled to a discount of 25%. The defendant is fined $75,000 and ordered to pay the prosecution's costs in the sum of $16,000. I order that WorkCover have a moiety of the fine. 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: 20 February 2015