WorkCover Authority of New South Wales (Inspector Batty) v Demolition Environmental Civil Contractors Pty Ltd

[2015] NSWDC 260

District Court

New South Wales

Medium Neutral Citation:	WorkCover Authority of New South Wales (Inspector Batty) v Demolition Environmental Civil Contractors Pty Ltd [2015] NSWDC 260
Hearing dates:	15 July 2015
Decision date:	17 July 2015
Jurisdiction:	Criminal
Before:	Kearns DCJ
Decision:	I find the offence proven and the defendant is convicted accordingly. I fine the defendant the sum of $30,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs agreed in the sum of $25,000 by five monthly instalments each of $5,000. The first of these instalments to be paid by 17 August 2015 and the last by 21 December 2015.
Catchwords:	Occupational Health and Safety Act 2000 s 8(2) – plea of guilty – worker fell from bridge into river during demolition of bridge – injury to knee – duty of employer to ensure that non-employees are not exposed to risks to their health or safety – foreseeability of risk – foreseeability of consequences – availability of measures to avoid the risk – defendant had system of safe work in place, including retaining independent project manager – workers inducted with safe work method statements – workers instructed and directed to wear harnesses but defendant failed to enforce – defendant provided appropriate personal protective equipment – specific deterrence – general deterrence – co-operation with regulatory authority – no prior offences – plea of guilty entered at first reasonably practicable opportunity
Legislation Cited:	Occupational Health and Safety Act 2000; Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	WorkCover Authority of New South Wales (Inspector Ian Batty) (Prosecutor) Demolition Environmental Civil Contractors Pty Ltd (Defendant)
Representation:	Counsel: Mr C Magee, instructed by WorkCover NSW, appeared for the prosecutor Mr D Weinberger, instructed by FARRAR Lawyers
File Number(s):	12/164874

Judgment

1. On 19 June 2010, Mr Drane was injured when he fell from a bridge. The bridge was the old Tourle Street bridge at Mayfield West. He was undertaking some demolition work on it.

2. The bridge was about 300 metres long and spanned the Hunter River. The bridge was oriented approximately on a north-south axis. Attached to the bridge on its western side was a walkway. The walkway was comprised of concrete and steel modules of about six metre lengths. Demolition work had commenced on the bridge in about February 2010.

3. The process of demolishing the walkway involved three steps. The first step was the breakup and removal of the concrete. The second step was the cutting of some sections that held the walkway modules to the bridge. That process left some other sections that held the walkway modules to the bridge and those sections needed to be cut. That was the third step of the process. It was that step Mr Drane was undertaking when he fell.

4. Demolition had commenced from the north side. A number of sections had been removed before the incident to Mr Drane which occurred on 19 June 2010.

5. Mr Drane was cutting a support connecting the walkway to the bridge when the incident occurred. The support was a metal U-shaped piece. There was one of these U-shaped pieces at both ends of each six metre module. One side of the U supported one module while the other side supported the adjacent module. Work was proceeding from the north in a southerly direction.

6. Mr Drane, standing on the steel component of the module to be removed, had cut the U-shape steel support from the northern end of that module. That left the steel U-shaped support at the southern end to be cut. That was the last thing to be cut before that module was freed.

7. Before he undertook any of this work on that module, it was secured by slings held in position by a crane. To cut the last remaining support for the module he was working on, it was necessary for Mr Drane to do it from the northern end of the adjacent module. This is because in cutting the final support, the module could suddenly move when it was freed. Mr Drane went to the adjacent module on its northern end and proceeded to cut. The problem was, instead of cutting that part of the U support which was holding up the module he had just stepped off, he cut the other arm. That arm was the support at the northern end of the adjacent module on which he was then standing. That module was not supported by slings connected to a crane. In cutting that section of the support, the module on which he was standing had only the arm of the U-section at its southern end to support it. That was insufficient to do so. The module moved. Mr Drane fell into the water below. He suffered an injury to his knee.

8. Mr Drane was employed by a labour hire company and his services had been provided to the defendant. The defendant was undertaking the work of demolishing the bridge.

The charge and plea

9. The defendant is charged with a breach of s 8(2) of the Occupational Health and Safety Act 2000. It has pleaded guilty.

Particulars

10. In summary form they may be expressed as follows:

1. not having a cutting sequence marked on the relevant components of the walkway;

2. failing to provide, maintain and enforce the wearing of a fall arrest system attached to a static line.

11. There are some particulars relating to instructing, training and supervision but they do not add to the above.

Sentencing

12. I need to bear in mind a number of matters. I need to bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act. I need to bear in mind the purposes of the Occupational Health and Safety legislation, in particular ensuring the safety, health and welfare of workers and others on workplace premises. I need to bear in mind any relevant aggravating and mitigating factors including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act so far as any of those may be relevant.

13. I start my analysis with a consideration of the gravity of the offence. This may be determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the availability of measures to avoid the risk.

14. Mr Drane was working at a height of three to four metres above the river and was unrestrained. The fall into the river was foreseeable. Injury from such a fall was also foreseeable. Indeed serious injury, even potentially fatal injury was foreseeable.

15. The risk of the fall was avoidable. The measures referred to in the particulars I have mentioned above reveal that is so. They were readily capable of adoption. In fact they have been adopted since the incident.

16. Moral culpability and blameworthiness however has more to it than those matters.

17. The defendant had a system of safe working in place. It retained Lombardi Consulting as the project manager for the job. There was some dispute in argument about Mr Lombardi’s role and status with the defendant at the time of the incident and before. It was not satisfactorily resolved. I find the defendant retained Lombardi Consulting as an independent outside body.

18. All site personnel engaged by the defendant, and that includes Mr Drane, were inducted with safe work method statements (SWMS) that had been developed, modified and augmented over time by the defendant. The SWMS were regularly reviewed. The most recent review before the incident was undertaken by Lombardi Consulting on 4 June 2010, that is about a week before the incident. The initial SWMS was developed at the start of the job in February 2010. That document in fact identified the risk of falling over the edge when cutting the steel walkway sections. It specifically identified the following control measure:

“If cutting on walkway preferred, ensure labourer secured by harness and fixed point to the handrail of Tourle Street bridge (remains)”.

19. The problem was that though the defendant provided harnesses Mr Drane was not wearing one. He chose not to. The defendant instructed and directed the wearing of a harness but did not enforce the implementation of this control measure. The SWMS did not specifically identify where the line from the harness was to be attached, except to the extent that I have just mentioned. This had the potential to create an even greater risk if the worker was cutting from the walkway and thought that walkway was secure. He could attach his harness to that and if he then cut the wrong support, as Mr Drane did, he could then fall with that section and be dragged to the bottom of the river.

20. The defendant did provide appropriate personal protective equipment, in this instance a lifejacket, which activated when Mr Drane fell into the water. This helped him swim to safety. Whether it was instrumental in his not suffering more serious injury is not clear. The section on which he was standing and from which he cut the support fell into the water after him.

21. Mr Drane was a qualified and experienced dogman and rigger. He had not before undertaken work in the demolition of bridges. He had worked on the demolition of the Tourle Street bridge over about 130 days before the incident. He signed the SWMS of February 2010. He attended inductions in relation to the contents of that SWMS. He signed the record of those inductions. They were thorough inductions. He attended daily toolbox talk meetings.

22. At this point it is convenient to recite a number of matters from the statement of agreed facts:

“38. The specific SWMS in force at the date of the incident provided guidance as to the cutting sequence and proposed locations from which respective cuts could be made. It also included diagrams of the steel cuts for the decks and their sequence.

39. However, the specific SWMS did not fully detail the demolition sequence in respect of the cutting of the components associated with the walkway structure, and in particular, how it could ensure that the cutting sequence was accurately followed by persons undertaking the task to ensure that the components were not cut in the wrong sequence, thereby creating the risk.

40. Mr Drane had been shown the cutting sequence by his supervisors on a number of occasions and had been on site for four consecutive months undertaking demolition work on the bridge, without incident.

41. The specific SWMS did not contain a cutting sequence marked on the relevant components of the walkway. The SWMS did not fully identify the hazard that could arise from the cutting of the walkway structures out of sequence, or the control measures to be implemented to address the risk.

42. The SWMS provided two alternative methods for undertaking the cutting tasks:

(1) The steel deck could be oxy-cut by the worker using an oxy torch from behind the handrails of the bridge, or

(2) by the labourer performing the cutting from the walkway itself, while wearing the harness attached to a fixed point on the handrail of the bridge.”

23. Mr Petropolous was Mr Drane’s supervisor on the day of the incident. The work site was a large area and obviously he could not be in all places at all times. He was undertaking his supervisory duties when the incident occurred but he was not near Mr Drane then. Why Mr Drane cut the wrong section is a mystery. The only evidence as to this comes in an exchange he had with Mr Petropolous. He said to Mr Petropolous

“Sorry about what happened. I have no idea why I did what I did. I don’t know what I was thinking.”

24. From all this it may be deduced that the defendant was diligent about having a safe system of work in place. It retained outside advisors in the preparation of its SWMS. It had a detailed SWMS for the task in hand. Its consciousness of safety extended beyond the tasks of Mr Drane. That was universal. It had a system of supervision designed to ensure its safety systems were implemented. Unfortunately it did have a critical failure in the SWMS and in the supervision. The failure in the SWMS is revealed in the SWMS created soon after the incident. In summary it requires the sections to be cut, to be spray painted and for the supervisor to check that that is done. After some other tasks are done the worker then moves into position and undertakes the cuts. This is set out in the SWMS both in writing and diagrammatically.

25. Another feature of the revised SWMS is the instruction in relation to the wearing of a harness. The instruction is detailed and significantly the worker is now to be attached to a static line. The static line is an inclusion that was added after the incident.

26. The failure in the supervision was in having a system of supervision that allowed a worker to work without a harness, especially in circumstances where the risk of fall was identified and the control measure of the harness prescribed.

27. The statements of Mr Lombardi, Exhibit DX1, and Mr Petropolous, Exhibit DX2, refer to the availability of harnesses and making the workers aware of their availability. Mr Lombardi even speaks of Mr Drane being directed to wear a harness. Neither statement however suggests that this direction was ever supervised for compliance or enforced.

28. I think all this material places the offence at a low end of the scale in terms of culpability. The features I have referred to however in my view make it inappropriate for an order to be made under s 10 of the Crime (Sentencing Procedure) Act. I shall make some further comment about that as there is some further material I need to refer to.

Deterrence

29. I do not think that there is much scope for specific deterrence to be considered in this case. The defendant was conscious of safety before the incident. The defendant acted almost immediately to rectify the problem. I have referred to some matters it undertook. I add the following from the statement of agreed facts:

• Developed and introduced a “working at heights - emergency rescue plan to address a circumstance where a worker is suspended while wearing a harness, and cannot self-rescue”.

• Reviewed its supervision structure.

• Increased the number of Work Cover accredited demolition supervisors.

• Increased the number of project management staff.

• Obtained third party accreditation on the management system which includes WHS accreditation, QA accreditation and environmental accreditation.

• Undertook six month external audits on management systems to ensure and maintain accreditation ratings.

30. The defendant’s consciousness of the need for safety is evident, so are its attempts to try to ensure safety both before and after the incident. This incident itself and these proceedings are sufficiently chastening that I do not consider specific deterrence is a factor that weighs much at all in this matter.

31. General deterrence is another thing. When working from heights, it is inevitable that risk of fall is ever present. Those involved in tasks that involve working from heights need to be aware of safety and of their obligations and that the failure to abide by safety obligations has consequences.

Subjective matters

32. In large measure many of these have been mentioned, including the defendant’s attitude to safety and its quick and detailed response to the incident. The defendant cooperated with WorkCover in all possible ways.

33. The defendant has no prior offences.

34. The defendant has entered a plea of guilty. Whilst on paper it may appear that this is a late plea there are explanations that explain fully that delay and in the circumstances I consider it to be a plea that was entered at the first reasonably practicable opportunity.

35. In considering all these matters I have set out, I repeat I do not think that this is an appropriate case for an order under s10. The defendant has a number of features in its favour and whilst its culpability is at a low level it is at a low level in respect of an offence that had potentially serious, even fatal possibilities. Further it was a system failure in the sense that though harnesses were provided and Mr Drane directed to wear one, the defendant did not enforce that.

36. The maximum penalty that may be imposed for this offence is the sum of $550,000. It goes without saying that that can be imposed only in the most extreme of circumstances. This being at the low end, I consider an appropriate fine undiscounted would be the sum of $40,000. Considering the matters I have set out earlier I think the defendant is entitled to a discount of 25% and that an appropriate fine in the circumstance is the sum of $30,000.

ORDERS

37. I find the offence proven and the defendant is convicted accordingly. I fine the defendant the sum of $30,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs agreed in the sum of $25,000 by five monthly instalments each of $5,000. The first of these instalments to be paid by 17 August 2015 and the last by 21 December 2015.

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Decision last updated: 09 November 2015