WorkCover Authority of New South Wales v Structural Concrete Industries Pty Limited

[2015] NSWDC 177

District Court

New South Wales

Medium Neutral Citation:	WorkCover Authority of New South Wales v Structural Concrete Industries Pty Limited [2015] NSWDC 177
Hearing dates:	18 May 2015
Date of orders:	18 May 2015
Decision date:	18 May 2015
Jurisdiction:	Criminal
Before:	KEARNS DCJ
Decision:	The defendant is convicted of the charge. I impose a fine of $37,500. I order the defendant to pay the prosecutor’s costs as agreed or as assessed. I order a moiety of the fine to be paid to the prosecutor.
Catchwords:	Occupational Health and Safety Act 2000 s 8(2) – plea of guilty – crane load made contact with wire cage causing it to topple and injure worker – duty of employer to ensure non-employees are not exposed to health and safety risks – incomplete work safety systems and safe work method statement in place prior to incident – complete and thorough implementation of further safety measures after incident – cooperation with WorkCover – one prior safety incident – good corporate standing – foreseeability of risk – foreseeability of consequences - preventability of risk – specific and general deterrence – discount for early guilty plea – costs and financial position of defendant
Category:	Sentence
Parties:	WorkCover Authority of New South Wales (prosecutor) Structural Concrete Industries Pty Limited (defendant)
Representation:	Counsel: Mr M Scott appeared for the prosecutor Mr C H Cassimatis appeared for the defendant
File Number(s):	2013/88113

Judgment

THE CHARGE AND THE PLEA

1. On 22 March 2011 Mr Doble was working at the defendant’s site at 11 Park Street Teralba. He was working there but was an employee of another company. In the course of his work he was crushed and injured when a wire cage was knocked by a load being moved by crane. The defendant is charged that contrary to s 8(2) of the Occupational Health and Safety Act 2000 it exposed persons not its employees including Mr Doble to risks to their health and safety. The defendant has pleaded guilty.

THE PARTICULARS

2. The particulars are set out in paras 4 to 9 of the summons and they may be summarised as follows.

1. The risk of being struck or injured by moveable reinforcing structures when such structures are themselves struck by a load being moved by crane.

2. The defendant should have identified that risk prior to permitting the movement of components by crane.

3. The defendant failed to carry out a risk assessment identifying that risk and providing measures to obviate or minimise it.

4. The defendant failed to ensure procedures were in place to warn all workers of the risk and require all persons working in or around structures which may be struck to stand clear of such structures.

5. The defendant failed to instruct the crane operator and spotter to ensure they were aware of and had visually confirmed the location of all workers.

6. The defendant failed to supervise Mr Doble to ensure he was clear of moveable structures that might be struck.

THE LEGISLATION

3. Section 8(2) of the Occupational Health and Safety Act 2000 provided:

“An employer must ensure that people (other than employees of the employer) 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.”

THE FACTS

4. The defendant is in the business of manufacturing and designing and supplying precast and prestressed concrete sections for the construction of buildings, roads and bridges. The defendant uses reinforced wire cages in the process. The cage is about 30 feet long and about 50 to 60 feet high. It is about 2 feet wide at its base and about 6 feet wide at the top. It weighs about 1.7 tonnes. There were four cages at the site located in what was called the 40 tonne area. The cages were positioned on timber bearers.

5. As part of the process a cage was placed into a concrete forming mould stressing bed by use of a remote control operated Demag overhead gantry crane on rails. The steel and concrete structure known as a “boat” was placed by the crane into the concrete forming mould together with the cage to create a void in the completed concrete section. The boat weighed about 10 tonnes. Premixed concrete was then poured. After curing the girder module was removed from the mould using the crane to form one modular component, approximately 34 metres long, of an overhead road bridge. Before removal of the girder the boats were removed separately by use of the crane and placed in a steel cradle in the 40 tonne area. This process was conducted by the crane operator, assisted by a crane chaser. The shape of the cage was such that it could tip over if struck by a boat when it was being moved by crane.

6. At the time of the incident Mr Doble was working in the 40 tonne area. He was attaching bearing plates to the bottom of a cage in preparation for the cage to go into a concrete mould. He was crouched between two upright cages. He had performed this task on about three prior occasions.

7. At about 6.45am on 22 March 2011 Mr Andrews was operating a crane to remove a boat from the mould. He was positioned on top of the mould about two and a half metres above the ground and about 6 to 7 metres to the north of the cage. The crane chaser or spotter assisting Mr Andrews was Mr Hall. He was located on the northern side of the cage approximately 7 to 8 metres from Mr Andrews. He signalled to Mr Andrews by hand signals and verbal commands. Neither Mr Andrews nor Mr Hall had a view of Mr Doble and they were unaware of his presence. He was on the western end of the cages. Mr Hall states he gave a direction to Mr Andrews to move the load to the north. Mr Andrews states that he was signalled to move the load in a southerly direction and that is what he did. In doing so the boat connected with the cage that Mr Doble was working on. That caused the cage to tip over onto Mr Doble, causing him injury.

8. The defendant had systems in place before the accident. It provided in‑house training and assessment to Mr Hall and Mr Andrews in the operation of the crane. Training was overseen by Mr Bower, who held a Certificate in Workplace Training and Assessment. The defendant utilised a risk assessment and risk management worksheet for the production of the concrete girders. Its risk assessment provided that only company authorised trained crane operators were to operate cranes and other crew members were to stand clear of suspended loads. The assessment did not address hazards associated with the movement of boats by crane around the yard area. It did not address hazards associated with conflicting work being done in the vicinity of crane operations. It did not address hazards associated with the positioning of crane operators and spotters and dogmen to ensure visual and auditory effect to safely direct the crane’s operation. It did not address hazards associated with the stability of cages in the event that they were struck.

9. The defendant utilised a Take 5 risk assessment process. That is a notebook sized documentary process for risk assessment. Prior to the task on the day of the incident Mr Andrews stated that he had participated in a Take 5 risk assessment although it does not appear to have been recorded or the record is not available. The defendant had a documented safe work method statement for lifting and handling of product and materials in place. The statement did not identify or address hazards associated with the safe movement of materials by crane around the site. It did not identify or address hazards associated with conflicting work being undertaken in the vicinity of crane operations. It did not identify or recommend the conduct of any risk assessment or Take 5. The crane operator and spotter did not issue a warning to Mr Doble or other workers in the vicinity prior to the operations of the crane. The defendant conducted toolbox talks in relation to the lifting of the boat but did not conduct one prior to the incident on 22 March 2011.

10. The defendant undertook a number of steps following the incident. Immediately following the incident medical assistance was provided to Mr Doble. A toolbox talk was held at the site and attended by all staff and contractors. Work was suspended in the 40 tonne area and an investigation immediately commenced. Concrete blocks were positioned beside the cages to provide stability.

11. On 25 March 2011 Mr Hall and Mr Andrews undertook and completed the Competency Assessment for the Requirements of Crane Chaser or Spotter. Investigation identified the risk of boats contacting cages causing cages to tip over. Boats were removed from the vicinity of the cage storage and preparation area to prevent them from travelling over or near the cages. The 40 tonne area was marked and measured to define the placement of boats and cages. The risk assessment was reviewed and replaced with an updated assessment. The defendant reviewed and updated its book of knowledge to include comprehensive specific breakdowns and risk assessments. The defendant implemented systems for lifting units from moulds and identified potential safety hazards. A safety measure was introduced which required the cages to be propped when not being lifted or moved. Team leaders were required to sign off daily on documentation confirming that safety assessments had been undertaken prior to the commencement of work. Further training was undertaken by Messrs Hall and Andrews to ensure the safe operation of the crane.

12. It will be seen that the defendant immediately attended to the welfare of Mr Doble and it took immediate action to prevent any other occurrence then or later. Its investigations and implementation of further safety measures may be described as complete and thorough.

13. I indicated earlier that the defendant had safety systems in place before the incident. That observation then was taken essentially from the statement of agreed facts. The details of those systems is amplified in an affidavit of Julian Borgert sworn on 11 May 2015. I spare myself the need to set out some of that detail by noting that the defendant’s systems in place were quite detailed and comprehensive. The detail extended to the induction, training and supervision of workers. Training was both oral and written. The defendant had an active Occupational Health and Safety Committee. It conducted monthly toolbox talk meetings.

14. Prior to the incident the defendant had addressed the issue of the stability of the cages. It determined that the cages did not require any bracing or additional support to prevent toppling. This was based on a number of matters which Mr Borgert set out at para 28 of his affidavit of 11 May 2015. Those matters in summary were: the geometry of the cages; stability calculations; reasonably anticipated construction manufacturing loads; other control measures in place within the production area; and a risk and control measure planning process. That assessment was conducted by Mr Smith and Mr Merretz, who were both experienced engineers. It was determined from calculations that there would need to be a 320 kilogram load applied horizontally at the top of the cage to destabilise it. It was further concluded that under normal working conditions such an incident would not occur. Mr Borgert added some more detail in his affidavit and then adds at para 32:

15. “Having said that the defendant failed to consider all the potential loads which might come into contact with the cages prior to the incident and, more particularly, the possibility of a cage being knocked by a 10 tonne load while somebody was working nearby.”

16. The process of freestanding cages was common in the industry.

17. Just returning to some matters the defendant attended to after the incident. Apart from the defendant’s direct involvement for Mr Doble’s immediate welfare following the incident the defendant maintained an indirect involvement. It was indirect because Mr Doble was working at the defendant’s site as an employee of another company. Contractually all communications with Mr Doble were to be through his employer company. The defendant maintained frequent contact through that employer company.

18. In addition, the defendant offered counselling for all workers. It assisted Mr Doble’s return to work as soon as he was able to do so, and he has been able to do so. It collaborated with his employer to analyse the risks in the workplace and implement improvements. Soon after the incident it apologised to Mr Doble in relation to the incident. Mr Borgert again did so personally upon Mr Doble’s return to work.

19. Toolbox talk meetings which were held monthly prior to the incident were changed to weekly. They are frequently attended by representatives from labour hire companies who provide input. Mr Borgert meets daily with Mr Smith and Mr Merretz. They discuss not only the management of the defendant’s business but also safety and preventative issues. The defendant now obtains workplace audits from external parties such as Mr Merretz’s employer prior to each task being performed. Roads and Maritime Services is also involved in that. The defendant now implements constant reminders of safety to workers. It is now specifically conscious of the zone of influence in crane operations. It implements what may be or has been described as activity separation.

20. The defendant has cooperated with WorkCover and, it would seem, to the fullest extent possible. This included bracing the cages following a WorkCover recommendation. That process was complete by about 31 March 2011 following engineering analyses as to the best method possible.

21. The defendant operates in an industry that inherently carries a fair degree of risk in its operations. It has had only one prior safety incident. It has been operating for about 30‑odd years. It currently has about 96 employees, several are long‑term employees. The defendant is a company of good standing in the community. It regularly donates and has donated to local community, educational and sporting bodies. It undertakes work experience programs, hosts factory visits and its engineers give guest lecturing presentations at Newcastle University.

THE SENTENCING

22. I need to bear in mind in sentencing the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act. I need to bear in mind also the purposes of the Occupational Health and Safety legislation, in particular the purpose of ensuring safety, health and welfare of workers and others on workplace premises. I need to bear in mind also such aggravating and mitigating factors in s 21 of the Crimes Sentencing Procedure Act as may be relevant in the circumstances.

23. 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 the incident, the foreseeability of the consequences of the risk coming home and the measures available to the defendant to avoid the risk.

24. Tort law reveals that foreseeability might range from the blindingly obvious to the farfetched and fanciful. This case is neither. The risk was foreseeable. The defendant put it that it was not readily foreseeable. How one describes it adjectively may be a difficult thing. Certainly to the defendant subjectively in this case the risk was at the lower end of likelihood in terms of foreseeability. This may be demonstrated by a number of factors. One is that defendant had operated for a long period of time without relevant incident. The next is the defendant was operating in this way in accordance with what was normal industry practice and it would appear that there had been no similar or relevant incident in the industry. The third is the defendant had specifically addressed the question of the stability of the cages and it came up with the answer that there was no need to do anything other than leave them freestanding.

25. It required another operation to introduce the risk of the cage toppling. That operation in this instance was the operation of a crane moving the boat. The defendant had work systems in place that were designed to ensure the safe operation of the crane.

26. The problem in this case was that for all its good intentions and for all its good safe work practices the risk in this case escaped attention. The risk was the risk of a boat colliding with a cage. The risk was there. It would seem it did not require an engineering brain to foresee it.

27. Maybe the problem with the defendant’s well-intentioned and well‑designed systems was that they were designed and implemented by highly skilled experts but the more mundane had escaped attention.

28. It seems to me that a layman might have predicted the risk that with boats and cages stored nearby, and boats being moved more or less on a daily basis, there was a prospect that one would come into contact with the other. The defendant frankly acknowledges its oversight in this regard hence obviously its plea of guilty.

29. It is sufficient if I describe that the risk was foreseeable but it is not at the blindingly obvious level. One would wonder how a group of engineers could have missed it.

30. That brings me to the foreseeability of the consequences if the risk were to come home.

31. The foreseeability of the consequences must be fairly obvious. If a person is working near an object as big and as heavy and as unyielding as the cage in question it must be obvious that should it be struck and topple it could cause serious injuries to a person caught up in it.

32. I turn then to the question of alternative measures available to prevent the risk occurring. I need not take any time on that. Measures were available. It is fairly obviously indicated by the fact that they have been implemented and implemented quite promptly following the event.

33. I turn then to deterrence. That always is a matter to be borne in mind in determining penalty.

34. Specific deterrence, it appears to me, is not a matter to weigh heavily in this case. That is fairly evident I would think from the measures that the defendant has put in place to ensure that an event of this nature, or any other event, cannot happen again. It is not irrelevant to note that the defendant was safety conscious before this event. It is even more safety conscious since.

35. General deterrence needs to be borne in mind. Persons undertaking work in a risky industry must know that safety measures need to be implemented and they must know that safety of the workforce is paramount and the safety of others on the work site is paramount and they must know that there are consequences for not complying with the legislation. General deterrence is ameliorated to some extent in this case because this seems to be an industry that is not in widespread operation across the community. It appears to be a highly specialised field. It appears to be a field with few operators operating it. It also appears to be a field where there is significant co-operation between all those operating in it, especially on matters of safety. There is probably enough in those circumstances in general deterrence by the very fact of this prosecution and the fact that this defendant has had to be brought to court as a result of the breach and the penalty must to some extent reflect general deterrence but in the circumstances be somewhat limited.

36. The maximum penalty available to be imposed in this case is the sum of $825,000. This is because the defendant has one prior conviction. It is I think relevant to note however that whilst that conviction arose out of the operation of a crane it was an incident of a kind very significantly removed from the offence in this case. Whilst this is not the defendant’s first offence it is in effect the first offence of a kind. It is not without relevance I think I may have mentioned to note that the defendant has been operating for a number of years in the industry, an industry with risk and it employs about 96 employees at the moment.

37. The defendant entered a plea of guilty. Looking at the bare dates it is late. There is however explanation for all of the lateness. The first explanation lies in the time that was taken over the jurisdictional issue concerning this court dealing with these cases involving the case of Empire Waste and its appeals. Then there was delay occasioned by the settling of the facts ultimately to be agreed. I proceed on the basis that the plea was entered at the first practical moment and I propose to discount the fine by 25%. In imposing the fine it is relevant to bear in mind that the defendant will be paying the prosecutor’s costs of this prosecution. It is not simply a matter of subtracting the costs from the fine but it is just a factor that needs to be considered. Perhaps that can be considered in the context of the defendant’s financial position. There is an affidavit from Rebecca Hart of 12 May 2015 which sets out the defendant’s financial position. It would seem that of late the defendant has been operating at a loss. I do not utilise that information to invoke the benefit of the Fines Act for the defendant, I do not think the evidence goes far enough from that point of view but it does show the defendant is operating at a loss. It also shows up one other matter in relation to the good corporate standing of the defendant. Despite operating at a loss the defendant has maintained its labour force. It has sacrificed its own profit in doing so. This has resulted in no dividends having been paid out for a while and no pay rises being available to salaried staff for a while. Directors have also reinvested into the business. It shows a measure of care for others, being its no doubt valued employees.

22. Having said all these matters in mitigation I cannot overlook the foreseeability of the risk and the very serious potential consequences of that risk coming home. Putting it all together however and doing the best I can I think an appropriate fine is the sum of $50,000. That should be discounted by 25% for the early plea which would result in a fine of $37,500.

23. The orders I make are the defendant is convicted of the charge. I impose a fine of $37,500. I order the defendant to pay the prosecutor’s costs as agreed or as assessed. I order a moiety of the fine to be paid to the prosecutor.

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Decision last updated: 20 August 2015