R v Commercial Industrial Construction Group Pty Ltd
[2006] VSCA 181
•8 September 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 184 of 2005
| THE QUEEN |
| v. |
| COMMERCIAL INDUSTRIAL CONSTRUCTION GROUP PTY LTD |
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JUDGES: | MAXWELL, P., BUCHANAN and REDLICH, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 February 2006 | |
DATE OF JUDGMENT: | 8 September 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 181 | |
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CRIMINAL LAW – Occupational health and safety – Employer’s obligation to ensure safe working environment for employees – Whether liability of corporate employer direct or by attribution to company of manager’s acts and omissions – Whether obligation discharged by adoption of safe system of work – Related obligation of employer to instruct, train and supervise employees – Duty to monitor compliance – Occupational Health and Safety Act 1985 s.21.
CRIMINAL LAW – Sentence – Occupational health and safety – Serious breach of employer’s duty to ensure safe working environment for employees – Employees exposed to risk of death or serious injury – Whether relevant that no serious injury resulted – Whether disregard of safety by trained manager mitigating or aggravating factor – Whether conviction warranted – Whether fine of $35,000 manifestly excessive – Occupational Health and Safety Act 1985 s.21.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G.T. Cannon | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions. |
For the Applicant | Mr P.G. Priest Q.C. | Woodham O’Keeffe & Co. |
MAXWELL, P.,
BUCHANAN, J.A.
REDLICH, J.A.:
As an employer, the appellant (“CICG”) had a duty to –
“provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.”
That general safety duty was imposed by s.21(1) of the Occupational Health and Safety Act 1985 (“the 1985 Act”). Under s.21(2)(a) of the 1985 Act, it was a contravention of the general safety duty imposed by s.21(1) if an employer failed –
“to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health.”
Since the commission of the offence the subject of this appeal, the 1985 Act has been repealed. Workplace safety is now governed by the Occupational Health and Safety Act 2004 (“the 2004 Act”), which came into force on 1 July 2005. The general safety duty has been re-enacted in s.21(1) of the 2004 Act. The wording is unchanged, except for the addition of the word “reasonably”, so the qualifying phrase now reads “so far as is reasonably practicable”. The specific contravention relevant here has also been re-enacted - in s.21(2)(a) of the 2004 Act - subject once again to the addition of the word “reasonably”.
CICG pleaded guilty in the County Court to one count of contravening s.21(1) of the 1985 Act, constituted by its failure to provide a safe system of work as required by s.21(2)(a). By its plea of guilty, CICG admitted that it had (in the words of the presentment) failed to –
“provide and maintain so far as was practicable for employees a working environment that was safe and without risks to health in that [it] failed to provide and maintain systems of work in relation to a construction site at 1392 Burke Road that were so far as was practicable safe and without risks to health.”
On 3 June 2005, his Honour Judge Coish convicted CICG and imposed a fine of $35,000. A stay of three months was ordered. By leave granted on 25 November 2005 by a judge of this Court, CICG appeals against that sentence.
The central ground of appeal is that the sentence imposed was manifestly excessive. CICG relies on a number of subsidiary arguments, to which reference will be made later.
The circumstances of the offending
On the plea, the circumstances of the offending were summarised in the prosecution opening. It is convenient to repeat that summary here.
CICG is a construction company. In May 2002, it was engaged in refurbishing a four-storey building at Kew High School. The relevant employees of CICG working at the site at the time of the offence were:
· Peter Bacon, the site manager;
· George Podger, a plasterer and carpenter, who had been employed by CICG for some six to eight months; and
· Jason Roach, a builder’s labourer, who had been employed by CICG for about a year and who was the elected health and safety representative of the employee for that site.[1]
[1]The provisions relating to health and safety representatives are to be found in Part IV of the 1985 Act.
Part of the building works at the site involved extending a corridor. This work required the removal of a section of the first floor roof. On 6 May 2002, Bacon (the manager) directed Podger (the plasterer/carpenter) to erect some scaffolding beneath the roof. The purpose of the scaffolding was to enable the timber trusses in the roof above the scaffolding to be removed.
Podger was not a scaffolder. He had no scaffolding qualifications. The scaffolding he erected was approximately three metres high, with a gap of one to 1.2 metres between the top platform and the roof. Podger had concerns about the scaffolding. Following the events described below, the scaffolding was inspected by a WorkSafe inspector. The inspector considered the scaffolding to be unsafe on four grounds, in that it had -
· no base plates underneath it;
· no longitudinal bracing to stop the scaffolding from swaying;
· inadequate guard rails. (There should have been at least two guard rails, at the top and in the middle.); and
· missing kickboards.
The following morning, 7 May 2002, Bacon instructed Roach (the builder’s labourer) to remove a section of the roof on the first floor. They discussed the need for a “Job Safety Analysis” (“JSA”) for the proposed work. A JSA is a written document the purpose of which is –
(a) to identify the hazards and risks involved in a job;
(b) to plan the precautions that should be taken to avoid those hazards and reduce the risk; and
(c) to detail a step-by-step procedure for performing the job to minimise risk.
A JSA is a recognised procedure by which employees receive instructions and information so that they can perform their work safely. JSAs are produced either by the supervisor or by the worker, each in consultation with the other.
Bacon told Roach that a JSA was required for the roof job. Roach expected Bacon to prepare the JSA. Bacon did not do so. As a result, no JSA was prepared.
When Podger arrived at the site, Bacon directed him to assist Roach with the task of removing the roof section. Roach encountered a downpipe on the roof. The pipe had to be cut away before some of the iron roof sheeting could be removed. Roach left the roof to get an angle grinder to cut the pipe away. While Roach was away, Podger pulled off some roof iron sheeting, which had the effect of –
(a) making an opening in the roof that was approximately half a metre wide and a number of metres in length. (There were also other openings in the roof from work that had been undertaken previously); and
(b) exposing the insulation beneath the iron sheeting.
Podger did not use the scaffolding to remove the iron sheeting. It would have been awkward to do so, as the scaffolding was not directly below the sheeting that was to be removed. The edge of the scaffolding was about 40 centimetres horizontally out of line with the closest edge of the opening.
Roach then returned to the roof with the angle grinder. He could not use the scaffolding platform because he was unable to reach the downpipe from the scaffold. Roach stepped over the opening in the roof (created by Podger’s removal of iron sheeting) to straddle it in order to get at the downpipe. As he did so, his foot slipped on the edge of the opening. He fell through the opening, holding the angle grinder in his hands. He fell through the insulation, creating a hole of about one metre by half a metre in size.
Roach fell about three metres on to the concrete floor below. He landed on his feet and then on his backside. Roach lay on the floor in shock for a time, then stood up and checked himself for injuries. He was taken to the first-aid room. Bacon was notified and went to see Roach in the first-aid room. Roach then drove himself to his own doctor. He had suffered bruising and lacerations to his foot, his arms and back, and shock. He was off work for a week.
On the following morning, Bacon directed Podger to go back to the roof and finish the job. Bacon did not give Podger any safety instructions or put in place any additional safety procedures or fall protection. Podger continued to work on the roof and on the scaffolding for about one and a half hours until two union officials arrived. They stopped the work on the roof because of safety concerns.
The union officials spoke to Bacon on arrival. They inspected the site and then went to the site office and asked Bacon if there was a JSA for the work that had been undertaken by Roach on the roof. Bacon told them that Roach had completed the JSA and that both Roach and Podger had been inducted into the JSA. When the officials asked for the JSA, Bacon was not able to produce it. They then left the site office and rang Roach to check if there was a JSA. They then returned to the site office. Bacon handed them a JSA. The officials observed that the handwriting on the JSA looked like Bacon’s handwriting.
At about this point the WorkSafe inspector arrived. After inspecting the site and taking photographs, the inspector spoke to Bacon, who admitted that he had lied to the union officials and that he had himself completed the JSA after the accident. Bacon repeated these admissions in front of the union officials, stating that he had lied as he did not want himself or CICG to get in trouble with WorkSafe.
The inspector then issued a prohibition notice under s.44(1) of the 1985 Act, prohibiting any work on the site at heights where a person could fall two metres or more. Given the terms in which s.44(1) confers power, the issue of the prohibition notice must have followed the inspector’s forming the opinion that there was (or would be) “an immediate risk to health and safety”.
The employer’s responsibility
The learned trial Judge was told that the company –
“accepts that Mr Bacon was the company and as a matter of legal analysis the company now accepts that Mr Bacon’s failures are the failures of the company.”
At the same time, the company was very critical of how Bacon had allowed the work to be undertaken. Senior counsel for CICG told his Honour:
“Now the position of the company is that there was no need for the men to be on the roof. They should have been working from the scaffold... [According to Mr Marson, the managing director of CICG] ... CICG had provided a scaffold so that the employees could complete the work safely and he could not understand why the employees had not worked from the scaffold as this would have prevented them from falling.
That was the position of the upper levels of management. They were of the view that the scaffold had been provided so that the work could be completed from below the ceiling. [They] could not understand why on earth anyone was out on the roof but, again, it’s accepted by the company that Mr Bacon’s failure or failures in that regard, according to the rules of attribution, have to be sheeted home to the company no matter how unfair some might think that is.” (emphasis added).
In its submissions in this Court, CICG referred again to “principles of attribution” which, it said, fixed the company with liability for breaches of the 1985 Act by its employee, Bacon. The applicable principles were said to derive from a number of well-known authorities (to which we will refer below), beginning with Tesco Supermarkets Limited v Nattrass.[2] In oral argument, Mr Priest submitted that CICG’s plea of guilty reflected this concession, which had foreclosed what could otherwise have been – so he submitted – “a healthy debate as to whether Bacon was or was not the company”.
[2][1972] AC 153 at 170.
These submissions all proceed from a false premise. No question of attribution arose – or could have arisen – in this proceeding. It is necessary for us to explain why that is so. As is apparent, CICG claims credit for making the concession that “Bacon was the company” while, at the same time, suggesting that it is somehow unfair that the company should be held responsible in this way.
Had CICG contested the charge, the Court would have had to decide whether the company had failed to provide and maintain a safe working environment and, in particular, a safe system of work. The Court would not have been called on to decide whether, as a matter of law, the acts and omissions of Bacon were the acts and omissions of the company itself. Rather, the Court would have had to decide whether, on the evidence of Bacon’s acts and omissions, and the resultant serious risks to which first Roach and then Podger were exposed, the company had done everything (reasonably) practicable to ensure the safety of its employees.
The legislative regime for workplace safety is quite different from that which was in issue in Tesco.[3] Breach of s.21(1) of the 1985 Act did not depend on proof of mens rea. (The position is unchanged under the 2004 Act). Notwithstanding the practicability qualification, the liability is properly to be regarded as absolute, since there is no room for a defence of honest and reasonable mistake.[4] Unlike the position in Tesco, there is no “due diligence” defence, nor is it a defence to show that the breach was “due to the act or default of another person”.
[3]As the English Court of Appeal pointed out in R v British Steel Plc [1995] 1 WLR 1356 at 1361, in relation to the equivalent legislation, the Health and Safety at Work Act 1974 (UK).
[4]See He Kaw Teh v R (1985) 157 CLR 523 at 590 per Dawson J; Italo Australia Construction Pty Ltd v Parkes [1988] 24 1R 428 at 431; Drake Personnel v WorkCover Authority (NSW) (1999) 90 IR 432 at 452; Broken Hill Associated Smelters Pty Ltd v Stevenson (1991) 42 IR 130 at 145; R v Gateway Foodmarkets Ltd [1997] 3 All ER 78 at 82 (applying the House of Lords decision in R v Associated Octel Co Ltd [1996] 4 All ER 846.)
It is immaterial at what level in an organisation the safety breach occurs. Adapting what was said by the English Court of Appeal in R vBritish Steel Plc, an employee –
“... will only be exposed to the risk if the system (if any) designed to ensure his safety has broken down and it does not matter for the purposes of [s.21] at what level in the hierarchy of employees that breakdown has taken place.”[5]
In a commentary on British Steel, published in the Criminal Law Review,[6] Professor Sir John Smith[7] said:
“Where a statutory duty to do something is imposed on a particular person (here, an ‘employer’) and he does not do it, he commits the actus reus of an offence. It may be that he has failed to fulfil his duty because his employee or agent has failed to carry out his duties properly but this is not a case of vicarious liability. If the employer is held liable, it is because he, personally, has failed to do what the law requires him to do and he is personally, not vicariously, liable. There is no need to find someone – in the case of a company, the ‘brains’ and not merely the ‘hands’ – for whose acts the person with the duty can be held liable. The duty on the company in this case was ‘to ensure’ – ie. to make certain – that persons are not exposed to risk. They did not make certain. It does not matter how; they were in breach of their statutory duty and, in the absence of any requirement of mens rea, that is the end of the matter.” (Emphasis added)[8]
[5][1995] 1 WLR at 1363D.
[6][1995] Crim L R 655.
[7]The author of The Law of Theft, joint author of Smith and Hogan’s Criminal Law, and a member of the editorial board of the Criminal Law Review.
[8]This commentary was quoted by the English Court of Appeal in Attorney-General’s Reference (No.2 of 1999) [2000] QB 796 at 812.
The English Court of Appeal adopted the same approach in R v Gateway Foodmarkets Ltd.[9]The Court held that the employer company had breached the equivalent of s.21(1) when its employee was exposed to the risk of injury –
“not by any act or omission of the [company], meaning their head office personnel or senior management who could be identified with the company itself, but by those of their employees who were not in that category, specifically the store manager or the section managers who had allowed the irregular [unsafe] system to grow up [which led to the employee’s death] and who had implemented it in contradiction of their instructions from head office.”[10]
[9][1997] 3 All ER 78.
[10]At 80-81 per Evans LJ (who delivered the judgment of the Court).
In that Court’s view, the provision creating the general safety duty should be interpreted so as to impose liability on the employer whenever the relevant event occurs, namely, a failure to ensure the health and safety of an employee.
“The duty under each section is broken if the specified consequences occur, but only if ‘so far as is reasonably practicable’ they have not been guarded against. So the company is in breach of duty unless all reasonable precautions have been taken, and we would interpret this as meaning ‘taken by the company or on its behalf’. In other words, the breach of duty and liability under the section do not depend upon any failure by the company itself, meaning those persons who embody the company, to take all reasonable precautions. Rather, the company is liable in the event that there is a failure to ensure the safety etc of any employee, unless all reasonable precautions have been taken – as we would add, by the company or on its behalf …
Secondly, if the test is whether all reasonable precautions have been taken by the company or on its behalf, then it would not seem to be material to consider whether the individual concerned, who acted or was authorised to act on behalf of the company, was a senior or a junior employee.”[11]
[11]At 83-4 (emphases added).
We respectfully agree. Similar views were expressed by Tipping J, as a member of the New Zealand Court of Appeal in Linework Limited v Department of Labour,[12] a case referred to by CICG. Adopting what he described as “the path suggested by Professor Sir John Smith”, his Honour said that if the prosecution of an employer for a breach of the general safety duty provision were to succeed -
“the crucial thing to be established is that there was a practicable step which could have been taken and which, if taken, was likely to have prevented the harm suffered by the employee. In the present case several such steps were identified. If at least one such step is demonstrated it must follow that the employer has failed to take a step which, ex hypothesi, was a practicable step which ought to have been taken. It does not matter on this analysis who omitted to take the step, provided some practicable step could have been taken by someone other than the injured employee.
If no practicable step could have been taken by someone other than the injured employee, the employer will not have committed an offence against s 6. The concept of practicable steps covers things like proper training and the establishment of safe systems of work. But it is not limited to such things and can of course relate to operational steps. Here the failure was of an operational kind rather than in the area of training or underlying systems. The simple fact is that all practicable steps to ensure [the employee’s] safety were not taken. Both on the language of the Act and in accordance with its policy, Linework as his employer was thereby in breach of its statutory duty to him. As will be apparent, this analysis does not depend on [his supervisor’s] status within the employer company, nor upon concepts of agency or vicarious liability. It relies simply upon the proposition that once there has been a failure to take practicable step to ensure the employee’s safety, the employer is responsible for that failure.”[13]
[12][2001] 2 NZLR 639.
[13]At 649-650 (emphases added).
The majority of the New Zealand Court of Appeal in Linework preferred to uphold the conviction of the employer company on the ground that the acts and omissions of the person in effective charge of the work site – in that case, the foreman, who had supervisory responsibility – should be attributed to the employer.[14] In the view of the majority, the actions of the foreman were “intended to count” as the actions of the company. That phrase comes from the illuminating analysis of the rules of attribution by Lord Hoffman (speaking for the Privy Council) in Meridian Global Funds Management Asia Limited v Securities Commission.[15]
[14]At 645 [24] and 648 [38].
[15][1995] 2 AC 500, esp. at 506C, 507F and 511D. See also Director of Public Prosecutions Reference No. 1 of 1996 [1998] 3 VR 352 at 354-5 per Callaway JA.
As Lord Hoffman explained in Meridian, the question whether the application of a statutory provision to a company involves rules of attribution - and, if so, what form those rules should take - is a question of construction of the relevant statute. For the reasons set out above, on the proper construction of s.21 of the 1985 Act no rules of attribution are called for. The only question is whether the employer company has done everything that it was (reasonably) practicable to do to ensure the safety of its employees. If not, the company has breached its duty. It is irrelevant to the question of liability where the failure occurred.
How and why the failure occurred is, however, relevant to sentencing. In assessing the company’s culpability, it will be relevant to know, for example, whether the breach was the result of a failure to adhere to systems put in place by management or, alternatively, was the result of a failure by management to establish adequate safety systems and procedures in the first place.
Rules of attribution are of particular importance where the statutory provision imposing liability, or creating a defence, turns on the existence of a state of mind. Meridian itself was just such a case, turning as it did on whether the company could be said to have had relevant knowledge. The 1985 Act had its own attribution provision of this kind, limited to the question of intention. Thus, s.52(2) provided:
“When in any proceedings under this Act it is necessary to establish the intention of a body corporate it is sufficient to show that a servant or agent of the body corporate had that intention.”
No question of intention arises, however, in relation to breaches of s.21(1).
For these reasons, the purported concession by CICG – that Bacon’s conduct was the conduct of the company – was immaterial. It was unrelated to any matter in issue. As we have seen, the concession was accompanied by the suggestion that the “sheeting home” of Bacon’s failings to the company was unfair. The unfairness arose because – so it was argued - the company had done all that it was possible for an employer to do. We now turn to consider that submission.
“What more could we have done?”
In the course of the plea, senior counsel for CICG asked rhetorically, “What is a company to do in these circumstances?” That rhetorical question was repeated in the company’s written submission on the appeal, which developed the theme in the following terms:
“[I]t is submitted that the punishment imposed is other than just. The evidence demonstrated that the company had proper safety systems in place. It was the supervisor, Bacon, whose job it was to ensure safety on site, who failed the company. Further, the unsafe method of working on the roof was employed by Roach, who was a freshly trained occupational health and safety representative. He had the power to issue an improvement notice to remedy any contravention of the [1985 Act] had he so chosen. Yet both of these employees failed the company.
...
[CICG] had provided a trained supervisor, had provided proper training to its employees and had proper systems in place. It was the supervisor whose conduct gave rise to the offence. Upper levels of management were appalled by his behaviour. There were certainly no high-handed disregard for safety. A company in the position of CICG can do little more than it was doing at the time that the accident occurred. Necessarily a company must trust its supervisors.” (emphases added).
A number of points may be made about these submissions. First, they were fundamentally at odds with the admissions constituted by the plea of guilty. By that plea, the company had admitted, unambiguously, that it had not done everything that it was (reasonably) practicable to do to ensure the safety of its workers. Secondly, as the learned trial Judge himself noted in the course of argument on the plea,[16] there was something of a contradiction between accepting, on the one hand, that Bacon was the company while submitting, on the other, that the company itself was somehow less to blame because Bacon had “failed the company”.
[16]T15-16.
In our view, the company’s plea of guilty was hardly surprising. Given what had occurred in this workplace, there was little room for doubt that the company had breached its duty to ensure so far as was practicable that its employees were safe. When Bacon’s conduct is reviewed, it is difficult to take seriously the company’s rhetorical question, “What more could we have done?”
As noted above –
· Bacon directed a person (Podger) who had no scaffolding qualifications to erect scaffolding for the purposes of the roof work to be undertaken. The scaffolding which Podger erected was unsafe in several critical respects;
· Bacon knew that a job safety analysis had to be carried out before the roof work was embarked on, and discussed the need for it with Roach. He then failed to undertake the necessary analysis and directed Roach to begin the work knowing that the safety analysis had not been undertaken;
· Bacon (apparently) failed to notice that the scaffolding was not in the right location to enable the roof work to be done from there, which meant that first Roach and then Podger had to work from the roof itself. That created the risk of a fall from height;
· Bacon allowed Roach to work on the roof, near the opening created by Podger, without any fall protection, whether in the form of a safety harness or safety mesh or guard rails;[17]
· despite Roach having fallen through the roof and injured himself, Bacon directed Podger to go back on to the roof and finish the job, without giving him any safety instructions and without having put in place any fall protection.
[17]See Code of Practice (No. 10) – Safe Work in Roofs (effective 1 July 1989) s. 2.1.
Bacon acted with complete disregard for the safety of his fellow employees. He abdicated his responsibility as manager to ensure their safety so far as it was practicable to do so. Sending Podger on to the roof in the wake of Roach’s fall, with the hole unguarded and with no fall protection, was reprehensible in the highest degree. (No question arose in these proceedings of Bacon’s personal liability. We merely note that prima facie Bacon would appear to have “wilfully placed at risk” the health and safety of Roach and Podger, within the meaning of s.25(2)(b) of the 1985 Act.)
The risks associated with working at height are self-evident – and notorious.[18] The content of the employer’s safety duty in this regard is crystal clear. Code of Practice (No.10) – Safety Work on Roofs (approved by the Minister under s.55(1) of the 1985 Act “for the purpose of providing practical guidance to employers”) contains the following prescription:
“2.1 Protection Against Injury Through Falling –
(a)Whenever work is to be carried out within two metres of any edge on a new or existing roof from which any person could fall a distance of 1.8 metres or more, provisions should be made to prevent persons falling.
(b)The method selected will generally be determined by individual job factors including nature of the work, size of area to be roofed, availability of equipment, interaction with other trades and the like.
(c)Methods available would include safety mesh, individual fall arrest systems, scaffolding, safety nets, guardrails or a combination of any of these. The use of on ground prefabrication and purlin trolleys should also be considered.”
[18]See R v ACR Roofing Pty. Ltd. (2004) 11 VR 187 at 212-3 [67]-[69] per Nettle JA.
Precautions ought therefore to have been taken for any work at a height of 1.8 metres or more[19]. As we have already noted, Podger fell a distance of three metres.
[19]Compare Occupational Health and Safety (Prevention of Falls) Regulations 2003, the objective of which was said to be “to prevent incidents involving falls of more than two metres”.
Bacon was the supervisor at this building site. According to evidence given on the plea by a Mr McDonald, a senior executive of the company, there were 19 employees on the site on that day for whom Bacon was responsible, including Roach and Podger. According to that evidence, Bacon’s duties were –
“to supervise the works, to ensure the works were carried out safely, to ensure the works followed the program and set down procedures that we had in place on site.”[20]
[20]T 33.
In its submissions on the plea, and again in this Court, CICG argued that the seriousness of the company’s breach was mitigated by the fact that –
“the failure in this case was that of an individual who was actually charged with ensuring that the safety management system was properly carried out”.
We are wholly unpersuaded by this argument. For any employee to behave as Bacon did, with blatant disregard for the safety of his fellow employees, would be bad enough. But when the employee in question is the person with supervisory responsibilities, including responsibility for ensuring safety at the site, the gravity of the company’s breach is increased, not reduced. It is difficult to understand how the company could have allowed someone with Bacon’s apparent indifference to risk to occupy such a position.
Employer’s duty to monitor employee compliance
There is something particularly unattractive about CICG’s submission that its employees “failed the company”. Under s.21(2)(e) of the 1985 Act, the employer had a duty –
“to provide such information, instruction, training and supervision to employees as are necessary to enable the employees to perform their work in a manner that is safe and without risks to health.”
These are obligations of the first importance. Unlike the obligations imposed by some other paragraphs of s.21(2), they are not qualified by the words “so far as is practicable”. (The same applies to s.21(2)(e) of the 2004 Act.) Every employer has an absolute obligation to ensure that every employee is adequately informed, instructed, trained and supervised, so as to enable the employee to work “in a manner that is safe”. Where an accident occurs, one of the first questions for the employer should be whether the event was the result of the employer’s failure to provide the necessary instruction, training, supervision and monitoring of its employees, to ensure compliance with its safe system of work.
As part of the “what more could we have done?” submission, the company argued that “proper systems were in place before the accident”. The evidence in this regard was hardly convincing. The company had purchased a “Safety Management System” from the Master Builders’ Association in March 2001. That system included the Job Safety Analysis procedure. According to Mr McDonald of CICG, it was a written system, consisting of “a folder of many pages”. Bacon, he said, was aware of the system.
Under the safety management system. it was the employer’s responsibility – and so, on this site, Bacon’s responsibility – to ensure that a Job Safety Analysis was completed. This was made clear by a witness from the Master Builders’ Association, called by CICG, who confirmed that a JSA was required for practically every single task on a building site –
“because usually most tasks that you carry out in construction do have some hazard and you would do a job safety analysis whenever some hazard is identified, so typically just about every task will require a job safety analysis.”[21]
[21]T 24.
Under cross-examination, Mr McDonald of CICG said that there was no record of any checks having been made at the site, in the period before the accident, to make sure that JSAs were being filled out.[22] According to Podger’s deposition, until this accident occurred JSAs were only infrequently filled out on this site. It was only after Roach’s fall that they became mandatory. McDonald was unable to dispute this statement.
[22]T 38-9.
As this case illustrates, the formal adoption of a satisfactory safety management system will not have the beneficial effects intended unless it is accompanied by the employer’s active implementation of the system in the workplace.[23] The employer’s duty will not be discharged simply by creating a safe system of work. The obligation requires the employer to ensure “that procedures and instructions are actively and positively complied with by employees”.[24] Not only must employees be appropriately trained but there must be ongoing supervision and compliance audits, to ensure that the system is being applied in practice. Employee compliance with the safe system of work must be constantly monitored by the employer.
[23]See WorkCover Authority v Fernz Construction (2000) 100 IR 23 at [35] per Walton J; Inspector Campbell v James Gordon Hitchcock [2004] NSWIR Comm 87 at [199].
[24]Inspector Dieter Franke v Vin Heffernan Pty Ltd [2005] NSWIR Comm 16 at [117]; WorkCover v Kellogg (Aust) (No. 1) (1999) 101 IR 239 at 257 per Walton J.
An employer should recognise that it is common experience that human error will be encountered in the workplace. Error can range from inadvertence, inattention or haste through foolish disregard of personal safety[25] to deliberate non-compliance with the prescribed safe system of work. In R v Australian Char Pty Ltd[26] and DPP v Amcor Packaging Pty Ltd,[27] this Court has referred with approval to the observations of Harper, J. in Holmes v R.E. Spence & Co Pty Ltd[28] that an employer’s responsibility for the safety of its workers will not be discharged unless the employer takes “an active imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality”.[29]
[25]Inspector Franke v Vin Heffernan Pty Ltd, supra, at [117].
[26][1999] 3 VR 834 at 847.
[27](2005) 11 VR 557 at 565.
[28](1992) 5 VIR 119.
[29]At 123.
The events of this day suggest a foolish or deliberate disregard of the company’s safety management system by three of its employees, as a consequence of the company’s failure over time to supervise and monitor its employees sufficiently in the course of the performance of their work and its over-reliance upon the discretion of employees in matters of safety. The conclusion is inescapable that its employees’ non-compliance with its safe system of work was not the consequence of a sudden lapse of judgment by them during these two days. The company’s duty was to ensure that its employees worked in accordance with the safety instructions that they had been given. The company’s submission, that it could have done no more to comply with its statutory obligation to provide a safe system of work, cannot be sustained.
Once again, the Code of Practice is very clear about the training and supervision recommended where roof work is involved. Where the employer is a medium-sized building company (which is how CICG was described to the judge), these provisions should be well-understood and rigorously enforced.
“Training and Supervision –
(a)Section 21(2)(e) of the Occupational Health and Safety Act 1985 requires employers ‘to provide such information, instruction, training and supervision to employees as are necessary to enable the employees to perform their work in a manner that is safe and without risks to health’.
(b)The training and instruction given, which could include site instructions, ‘in-house’ training programs, and components of formal training should be in appropriate languages and cover at least:
(i)The work method to be used for the loading, positioning and fixing of roof materials including access.
(ii)The method to be adopted to protect the employees against injury from falling.
(iii)The correct use, care, and storage of individual fall arrest equipment and safety nets.
(iv)The correct use, care and storage of personal protective equipment.
(v)the correct use, care and storage of tools and equipment to be used, including electrical safety.
(vi)Procedure to be adopted in the event of accident or injury.
(c)Supervision would need to:-
(i)Ensure that only those employees who had received training and instruction were authorised to carry out the work.
(ii)Include sufficient monitoring of the work to ensure that the agreed safe work practices were being adhered to including the use of fall protection and personal protective equipment.”
The appeal against sentence
The grounds of appeal were as follows:
1.The sentencing Judge gave excessive weight to –
(a) considerations of general deterrence;
(b)denunciation;and
(c)just punishment.
2.The sentencing Judge gave insufficient weight to the plea of guilty.
3.The sentencing Judge gave insufficient weight to the low level of appellant’s culpability.
4.The sentencing Judge gave insufficient weight to the appellant’s lack of prior or subsequent convictions or findings of guilt.
5.The sentencing Judge gave insufficient weight to the adverse economic consequences to the appellant of imposing a conviction.
6.In all the circumstances of the case –
(a)the imposition of a conviction, and
(b)the fine of $35,000 –
are manifestly excessive.
The arguments directed at whether too much, or too little, weight was given to a particular consideration were really subordinate to, and supportive of, the principal argument that the sentence was manifestly excessive. This was made clear in the company’s written submission, which contended that –
“by imposing a conviction, and a fine of $35,000, the Judge must have ... given too much weight to some matter of aggravation, or too little weight to matters of mitigation.”
As we recently explained in R v Winter:
“The contention that the sentence is manifestly excessive does not assert specific error. Rather, it asserts error falling into the ‘unreasonableness’ or ‘implicit error’ category. The sentence must be obviously, or strikingly, excessive, such that the appeal court is entitled to conclude that there was no proper exercise of the sentencing discretion at all. The court must conclude that, in some way not apparent on the face of the sentencing reasons, the sentencing discretion has miscarried.”[30]
[30][2006] VSCA 144 at [55].
By itself, an argument addressing the weight given by a sentencing judge to a particular factor will rarely succeed. What was said by Callaway JA in R v Bernath[31] in this regard bears repeating:
“A ground of appeal may complain that a sentencing judge failed to give due weight or, alternatively, gave excessive weight to a relevant factor, but that stands in contrast with a ground that asserts that the judge disregarded such a factor altogether or took an irrelevant into consideration. Where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error. The underlying concept pervades the law relating to discretionary judgments and is not limited to the criminal law.”[32]
[31][1997] 1 VR 271.
[32]At 277.
As the learned Judge said in the present case, general deterrence –
“is of considerable importance in a case such as this. The objects of the [1985] Act include securing the health, safety and welfare of persons at work, assisting in securing safe and healthy work environments and eliminating at the source risks to the health, safety and welfare of persons at work.”
For the reasons we have already given, his Honour was right to say that –
“the circumstances of this offence were without doubt very serious. Workers were engaged in performing tasks on site upon a roof in an unsafe environment.”
In relation to the “adverse economic consequences” to CICG of imposing a conviction, his Honour noted the CICG submission that –
“... a conviction may have an adverse effect on the company’s prospects of success in tendering for government projects. The company earns a significant amount of revenue from government projects and there could be significant losses if it is in a disadvantageous position when competing with other companies who have not been in breach of the [1985 Act]”.
In our view, no error has been shown in his Honour’s decision that CICG should be convicted. With respect, this was plainly the right decision in the circumstances.
Given the vital importance of workplace safety, it is not surprising that government would give preference, in the letting of contracts for government projects, to tenderers with a good occupational health and safety record. This case involved a very serious breach of CICG’s safety duty. It was simply a matter of luck that no one was killed or seriously injured. It was an entirely appropriate case for the recording of a conviction. That will have whatever adverse consequences it may in relation to CICG’s prospects of securing government contracts.
As to the fine of $35,000, the maximum penalty to which CICG was liable for a breach of s.21(1) was $250,000.[33] Given the gross safety breaches which occurred on this site, and given that they occurred at the active instigation of the company’s site supervisor, the fine of $35,000 was very lenient. There has been no Crown appeal against sentence but it would follow from what we have said that the Court would have been well justified in imposing a considerably higher fine.
[33]Under the 2004 Act, the corresponding maximum penalty has been increased to $900,000: s.21(1).
As we have said, the risk of falling when work is carried out at height is notorious and grave. The risk of death or serious injury is ever-present. The fact that no-one was killed or seriously injured as a result of these safety breaches is irrelevant to the gravity of the company’s breach. The obligation imposed on employers by the 1985 Act – and now by the 2004 Act – is to protect employees against risks.[34] In the present case, two employees were exposed to very grave risk. That is the measure of the company’s culpability.
[34]See DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 at 565 [35].
The appeal should be dismissed.
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