WorkCover v Robertson

[2015] NSWDC 367

District Court

New South Wales

Medium Neutral Citation:	WorkCover v Robertson [2015] NSWDC 367
Hearing dates:	28 April 2015
Date of orders:	28 April 2015
Decision date:	28 April 2015
Jurisdiction:	Criminal
Before:	Curtis J
Decision:	The defendant is convicted and fined
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – defendant's business supplied scaffolding and material hoists – steel scaffolding board dislodged by protruding mesh from platform of hoist and fell onto workers – inexperienced and uninstructed employee operating hoist SENTENCE – fine – capacity to pay – specific deterrence – general deterrence – subjective consideration COSTS – prosecution costs
Legislation Cited:	Occupational Health and Safety Act 2000 Fines Act 1996 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	WorkCover Authority of New South Wales (Prosecutor) Glenn Matthew Robertson (Defendant)
Representation:	Counsel: M Moir for the Prosecutor L Tyndall for the Defendant Solicitor: WorkCover Legal Group (Prosecutor) Sydney Criminal Defense Lawyers (Defendant)
File Number(s):	2012/297513
Publication restriction:	None

SENTENCE

1. On 28 September 2010 on a building site at 233 Harris Street, Pyrmont Mr Adam Cash and Mr Stephen Holdsworth suffered injuries when a steel scaffolding board dislodged by a roll of blue mesh, protruding from a rising materials lift, fell some 30 metres onto them as they stood near the landing point of the hoist.

2. Mr Cash and Mr Holdsworth were employees of Now Access and Scaffolding Solutions Pty Limited (Now Access) which company had contracted with Buildcorp Group Pty Limited, the head contractor to provide scaffolding and material hoists to the site.

3. The defendant Mr Robertson was at the time the sole director of Now Access and attended upon the site once or twice a week to supervise. Mr Robertson admits that Now Access in contravention of section 8(1) of the Occupational Health and Safety Act 2000 failed to ensure the health and safety and welfare of Mr Cash and Mr Holdsworth. He pleads guilty to the charge that he, in contravention of section 26 of the Act, being in a position to influence the conduct of Now Access, failed to use all due diligence to prevent the contravention by the company.

4. Now Access sub-contracted the installation of the hoist to Conveyer and Hoist Rentals Pty Limited (Conveyer and Hoist). That company installed the lifting mechanism of the hoist on 20 April 2010, five months before this accident.

5. Because Now Access had not built the landing platform of the roof level, Conveyer and Hoist were unable to complete the works and in particular did not install interlocking gates at each level so as to prevent the hoist from operating unless all gates were closed. It also failed to erect an enclosure at ground level to prevent unauthorised access to the hoist.

6. Employees of No Access were told by Mr Grey of Conveyer and Hoist that they must “sort out” the issues with the scaffolding before Conveyer and Hoist could complete the installation and commission of the hoist.

7. Mr Robertson himself arranged the sub-contract with Conveyer and Hoist and was recorded as the contact person in the contract between the two companies. Although Mr Grey advised employees of No Access on the site that the hoist was not fit for use, a key was left in the control mechanism on the ground floor. Thereafter various tradesmen on the site operated the lift although they were neither trained nor licensed in its operation.

8. On the day of the accident Mr Barton, an apprentice bricklayer then aged 19 and the employee of another sub-contractor operated the hoist to elevate working tools to level 7. Mr Barton was not licensed to operate the hoist and he took no steps to prevent the roll of blue mesh protruding from the hoist platform. He was untrained and uninstructed in the operating instructions of the hoist which required that nothing protrude from the platform.

9. The essential failure of No Access was that it condoned the operation of the hoist by unqualified persons in circumstances where it had cause to know that the installation of the hoist was not complete and the operating mechanism was not enclosed. Confiscation of the key was the reasonably practical precaution that required no effort and no expense and was within the control of No Access.

Objective Seriousness of the Offence

10. The falling steel scaffold board struck Mr Holdsworth on his arm causing bruising and minor scarring. It struck Mr Cash on his head and, although he was protected by a safety helmet, he suffered a large haematoma on the left side of his head and fractured thoracic vertebra.

11. Mr Cash suffers from permanent disabilities and psychological sequelae. He is unable to work and is afflicted by anxiety and nightmares. The substantial harm suffered by Mr Cash is an aggravating factor in sentence. The conduct of Mr Robertson and his company No Access fell seriously below the standards of reasonable men. The dangers were plain and the remedy simple. The objective seriousness of the offence falls on the graver side of the spectrum.

General Deterrence

12. The construction industry is notoriously dangerous and it is necessary that the penalty serve as a warning to others that failure to institute and maintain rigorous standards of safety may result in substantial detriment.

Specific Deterrence

13. There is a limited need for specific deterrence. The defendant’s company has been dissolved and he no longer works in scaffolding. He is employed as a plumber and builder’s labourer.

Plea of Guilty

14. Although the defendant did not offer a plea at the first available opportunity, his plea being offered one week before the matter was set down for a defended five day hearing, it appears that this failure was a consequence of impecuniosity, not having the means to obtain legal advice. I propose to discount the penalty in consequence of a plea of guilty made at the first available opportunity following his receipt of legal advice.

Subjective Considerations

15. The following matters sound in mitigation: Full co-operation with Workcover investigation, persuasive evidence of deep remorse and the absence of prior convictions.

Ability to Pay

16. Section 6 of the Fines    Act 1996 requires that I consider the defendant’s means to pay a penalty. Mr Robertson is bankrupt. He gives evidence that last year he earned a taxable income of $25,000. He says that he has been borrowing money from friends and family to pay his legal costs of this case. The maximum penalty fixed by the statute is $55,000.

17. Although I am urged to grant to the defendant the provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999 I do not believe that it is appropriate in the present case.

18. I accept that the defendant’s good character, his antecedents his mental condition and his remorse are factors weighing towards the grant of leniency. However this is not a trivial offence.

19. Notwithstanding the impecuniosity of Mr Robertson a penalty of less than $10,000 would not adequately reflect the objective seriousness of this offence. It is appropriate to discount that amount by 25% in recognition of a plea of guilty.

20. I convict the defendant and fine him $7,500. I order that Workcover have a moiety of the fine.

21. Because an order that Mr Robertson also pay the prosecution costs would impose a disproportionate further penalty upon him I make no order for costs.

**********

Decision last updated: 15 February 2016