Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Dall v Caines (No 2) [2012] NSWIRComm 21
• Hearing dates: 8 March 2012
• Decision date: 22 March 2012
• Jurisdiction: Industrial Court of NSW
• Before: Haylen J

Decision

A    In relation to the s 8(2) offence:

(i)    the defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act as particularised in  

Matter No IRC 219 of 2011 to which the defendant entered a plea of guilty;

(ii)   the defendant is fined the sum of $5500 with half that amount to be paid to the prosecutor by way of moiety;

(iii)  No separate order as to costs.

 

B      In relation to the s 136(1)(b) offence:

(i)     the defendant is found guilty of a breach of s 136(1)(b) of the  Occupational Health and Safety Act as  particularised in Matter No IRC 218 of 2011;

(ii)     the defendant is fined the sum of $2200 with half that amount to be paid to the prosecutor by way of moiety;

(iii)    the defendant is to pay the costs of the prosecutor in the sum of $5000.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(2), s 136(1)(b) - two offences arise from same circumstances - Inspector observes work being performed at height without fall restraint equipment and using inadequately fixed and placed scaffolding - painting work being carried out on awning - plea of guilty entered in s 8(2) offence - s 136(1)(b) offence found proved in contested proceedings - sentencing in both matters - objective seriousness of both offences considered - general and specific deterrence - plea in s 8(2) offence offered at first mention - no prior convictions - defendant bankrupt - limited evidence of financial means - penalties reduced
• Legislation Cited: Fines Act 1996; Occupational Health and Safety Act 2000
• Cases Cited: Inspector Dall v Caines [2011] NSWIRComm 166
• Category: Principal judgment
• Parties: Inspector Michael Dall (Prosecutor); Andrew James Caines (Defendant in Matter No IRC 218 of 2011); Andrew James Caines t/as Coral Coatings Contract Painters (Defendant in Matter No IRC 219 of 2011)
• Representation: Mr Reitano of counsel (Prosecutor); Mr Caines (Defendant - unrepresented); DLA Piper Australia (Prosecutor)
• File Number(s): IRC 218 of 2011; IRC 219 of 2011

Judgment

1 Mr Andrew James Caines is before the Court for sentencing in relation to a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act") and also a breach of s 136(1)(b) of the Act. In relation to the s 8(2) offence, Mr Caines entered a guilty plea at the first mention of the matter. The

s 136(1)(b) offence was contested by Mr Caines a in a judgment delivered on 18 December 2011 he was found guilty of that breach (see Inspector Dall v Caines [2011] NSWIRComm 166).

2 Each offence arises out of the same circumstances. Mr Caines was a painter trading as Coral Coatings, Contract Painters ("Coral Coatings"). On 3 April 2010 he was undertaking painting work on a bull-nosed awning attached to a building situated at the corner of Park Avenue and Little Street, Coffs Harbour. At that work site, Mr Caines had employed Mr Drews to perform the painting work. Inspector Dall observed Mr Drews sitting on the roof performing the painting work in circumstances where there was a risk of him falling from height to the ground.

3 In relation to the s 8(2) offence, the relevant particulars were as follows:

(1)The defendant was, at all material times, an employer.

(2)The defendant's place of work was at the site, namely, the Corner of Park Avenue and Little Street, Coffs Harbour.

(3)The defendant's undertaking at the site was the painting of a bull-nosed awning.

(4)The people who were at risk and who were at the defendant's place of work was Jason Drews.

(5)The risk referred to in this charge and in these particulars refers to the risk of the defendant's contractor, Jason Drews, falling from height to the ground.

(6)The defendant failed to ensure that there was an adequate means of fall protection (such as scaffolding properly erected and tied to an adequate height and extent of roof coverage, handrails or the use of harnesses) to prevent Jason Drews from falling from height.

(7)The defendant failed to ensure that a falls arrest device, such as a harness or similar device, was used by Mr Drews whilst he was working at height, to prevent him from falling.

(8)the defendant failed to provide adequate supervision to Mr Drews so that he did not work at height and left suitably erected scaffolding, guard rails or other suitable forms of fall protection were in place or that he was using harnesses or other suitable falls arrest devices.

(9)As a result of the defendant's failures, Jason Drews was exposed to risk.

4 In relation to the s 136(1)(b) offence, the particulars of the charge were found to be proved by the Court. Those particulars were:

(1)The authorised official referred to in this charge and these particulars is Inspector Jeffrey Bell, being an Inspector duly appointed under Div 1 of Pt 5 of the Act who was an authorised official within the meaning of s 136(2) of the Act.

(2)The function that the official was performing under the Act was the function invested in him by Pt 5 (Investigations) of the Act and in particular, s 50 and s 59 of the Act.

(3)The defendant intimidated or threatened or attempted to intimidate Inspector Bell by standing in front of the defendant's vehicle and sticking his second index finger up at the Inspector.

(4)The defendant told the Inspector words to the following effect:

What the fuck do you think you are doing? Come on over and I will sort you out, hey soft cock, come over here, hey soft cock, fuck off you peanut-head.

5 The evidence in the s 136(1)(b) offence demonstrated that Inspector Dall had observed the work being performed on the bull-nosed awning in circumstances where there was a risk of Mr Drews falling. Inspector Dall initially spoke to workmen at the site pointing out the inadequacies of the way in which the scaffolding was placed and giving some directions as to how the risk to safety might be addressed. During this discussion, the Inspector was informed that a harness was available and would be provided to Mr Drews. The Inspector then left the site but upon returning sometime later found that no steps had been taken to address the issues he had earlier raised. He also noted that Mr Drews was not wearing a harness.

6 At the sentencing hearing, due to his circumstances, Mr Caines was able to participate by way of telephone conference rather than being present in Court. Mr Caines consented to the tendering of a Statement of Agreed Facts, being a document prepared with solicitors for WorkCover and solicitors then engaged by Mr Caines. That Agreed Statement of Facts in the s 8(2) breach will appear as an annexure to this judgment.

7 The prosecutor also tendered photographs that had previously been shown to Mr Caines as well as certificates indicating that Mr Caines did not have any prior convictions. Both matters proceeded on the basis of the relevant facts appearing from the s 136(1)(b) proceedings and the Agreed Statement of Facts.

8 As in the contested s 136(1)(b) proceedings, Mr Caines appeared for himself. Mr Caines had provided to the Court and counsel for the prosecutor copies of documents he wished to refer to during the course of his submissions. Mr Caines did not give sworn evidence but generally addressed his present circumstances, especially his financial circumstances. Amongst the documents tendered by Mr Caines was a letter acknowledging appointment of a Trustee of his estate in mid-May 2011 pursuant to the presentation and acceptance of his debtor's petition by the Official Receiver. He also provided evidence of money owing to him that had not been paid despite being followed-up. That material indicated that, from at least one source, an amount of more than $6,000 was owed to Mr Caines. That debt involved a painting firm that also been made bankrupt. Mr Caines' submissions tended to indicate that it was this particular bad debt that pushed him into bankruptcy.

9 Under arrangements with the Trustee in Bankruptcy, Mr Caines said he was able to earn up to $47,000 p a but he was unable to live on that amount of money. He spoke of his house being "repossessed shortly." At the time he gave evidence, Coral Coatings was not earning any money because there had been a "terrible downturn" in the Coffs Harbour economy and there had been lots of rain. Mr Caines asserted that he was now uncompetitive in the area due to trying to adhere to all the WorkCover rules whereas his competitors were not abiding by those rules. His only work was operating his painting business by hiring others to perform the work because he had a WorkCover injury in 2000 and the only way he could earn money was to employ himself. He said he had left school at the age of 15, did not have any other skills and he had only ever been employed as a painter. He said he was trying to run his business but he was not making any income from that work. Nevertheless, he was still quoting on jobs, invoicing jobs that had previously been performed and trying to collect money for that work.

10 Although he was not working at the moment because of lack of work, Mr Caines said that he employed five people and paid them wages. He did not have any other assets apart from his house (owned by his previous partner) and he did not own a truck or a car. He was paying lease payments in respect of four leased vehicles. The leasing company had agreed to re-finance these payments to an acceptable level. Mr Caines said he also had equipment to perform his work, including small ladders, plants, small trestles and hand tools such as brushes, rollers and scrapers. He had a harness and also owned the scaffolding that was used on the day of the incident. Mr Caines stated that the last time he worked was in early March 2012. In relation to the five people he employed, Mr Caines said that they had been employed full-time up until recently but the work situation had deteriorated to the extent that he only called them in when there was work and currently they were being employed, sometimes only three or four days per week.

CONSIDERATION

11 In light of the fact that Mr Caines has no previous convictions, the maximum fine in the s 8(2) matter is $55,000. The prosecutor informed the Court that, initially, a penalty notice was issued to Mr Caines in relation to this matter for a failure to ensure the health, safety and welfare of employees as well an improvement notice relating to work on the roof with inadequate fall protection. Mr Caines had sought a review of the penalty notice. However, it was upheld and then Mr Caines elected to have the matter determined by the Court. The original penalty notice imposed a fine of $1,000 and it appears, therefore, that it was only Mr Caines' actions that exposed him to this much higher penalty regime for a breach of s 8(2) of the Act. In relation to the s 136(1)(b) breach the maximum fine in Mr Caines' circumstances was $16,500.

12 The Agreed Statement of Facts stated that the maximum fall from the awning was approximately 3.5 metres. A fall from that height had the potential to inflict serious injury and much would depend on how a person fell and the surrounding condition of the worksite. In the present case, there was clearly a risk of significant injury. At the site Mr Caines had available to him all the measures that were capable of addressing this risk: he had scaffolding although it was not properly aligned nor was it properly tied and he had the availability of a fall arrest device but it was not used. The initial response of the WorkCover Inspector was to proceed by way of penalty notice. The surrounding circumstances suggest to the Court that this case falls within the lower levels of the range of appropriate penalties. There is no suggestion that general and specific deterrence should not play a role in the setting of an appropriate penalty, especially in view of the fact that Mr Caines continues to work in the industry although under difficult circumstances.

13 Mr Caines entered a plea to the s 8(2) offence at the earliest possible occasion and he is entitled to have the benefit of a 25 per cent discount because of that early recognition of his guilt. The early plea is also indicative of him taking responsibility for his actions although in his submissions, he spoke of being forced into bankruptcy and out of competitive business because of the apparently unreasonable requirements of WorkCover that were not being required of his competitors who ignored such restrictions. The Court cannot accept that submission, especially in light of the fact that Mr Caines had at hand all that he needed to perform the work safely, namely, scaffolding and a harness.

14 In appearing for himself, Mr Caines did not have the benefit of the types of submissions that might have drawn the Court's attention to subjective factors relevant to the sentencing process. It is clear that he had a system of work in operation and he had the means at hand of operating a safe system of work. He had no prior convictions and is entitled to the recognition afforded a first offender. In the course of submissions Mr Caines appeared to indicate that, because of his bankrupt state, he would be absolved from the payment of any fine and that there was little purpose in the present proceedings.

15 While the Court did the best it could in the circumstances in eliciting from him his current financial circumstances, the Court was, nevertheless, left in a state of uncertainty as to the extent of his debt and financial difficulties. He gave evidence of being able to earn a small but significant amount of money and having the ability to pay the lease on four vehicles. Until a few days before the hearing he had employed five persons full-time and was continuing to employ them but on a reduced basis. His financial position as a bankrupt appeared to have arisen from a fairly modest unpaid account. The Court has previously observed that it is wrong to impose a penalty that the defendant cannot pay. It appears clear from Mr Caines' evidence that he has a capacity to pay some amount but it is unclear what the outer limits of that amount might be. Having regard to the terms of the Fines Act 1996, it is necessary for some recognition to be given to Mr Caines' financial circumstances in the setting of a reduced level of penalty but ultimately, the most appropriate relief that Mr Caines might seek is an application to the Registrar to pay by instalments because of his financial position. In a helpful submission, counsel for the prosecutor indicated that, although there were significant costs involved in these matters, probably exceeding $20,000, this was a case where costs in the vicinity of $7000 would be sufficient, having regard to Mr Caines' bankruptcy.

16 The same comments apply to the s 136(1)(b) offence. The Act makes a number of provisions to protect Inspectors in the performance of their role and the exercise of their powers is essential in implementing the many safeguards provided by the Act. An intimidation offence is to be treated as a most serious offence. In this case the evidence suggests that Mr Caines lost control of his composure and engaged in an angry and intimidating exchange with the WorkCover Inspector. The intensity of that anger caused the Inspector to immediately leave the site and to cease performing his duties. The best that can be said about the incident is that it was not prolonged and had ended within a relatively short period of time. That result, however, may have more to do with the actions of the Inspector withdrawing from the site than in Mr Caines realising that his actions were totally unwarranted. The offence is, therefore, to be treated as a serious offence with both general and specific deterrence forming a significant part of the penalty.

17 The extent of costs to be ordered is also to be considered in the context of the Fines Act. The prosecutor has indicated that an amount of $7000 would be appropriate in these cases. However, the Court concludes that the total costs for both proceedings should not exceed $5000.

Having regard to the fact that the majority of the Court's time was involved in determining the s 136 offence, it is appropriate that the costs order be made in that case with no order as to costs in the s. 8(2) matter.

ORDERS

18 Having regard to the above matters, the Court makes the following orders:

AIn relation to the s 8(2) offence:

(i)the defendant is found guilty of a breach of s 8(2) of the

Occupational Health and Safety Act as particularised in Matter No IRC 219 of 2011 to which the defendant entered a plea of guilty;

(ii)the defendant is fined the sum of $5500 with half that amount to be paid to the prosecutor by way of moiety;

(iii) No separate order as to costs.

BIn relation to the s 136(1)(b) offence:

(i)the defendant is found guilty of a breach of s 136(1)(b) of the

Occupational Health and Safety Act as particularised in Matter No IRC 218 of 2011;

(ii)the defendant is fined the sum of $2200 with half that amount to be paid to the prosecutor by way of moiety;

(iii)the defendant is to pay the costs of the prosecutor in the sum of $5000.

ANNEXURE

AGREED STATEMENT OF FACTS

1As at 3 April 2010, the defendant:

(a)Undertook a painting business under the trading name Coral Coatings Contract Painters;

(b)Was engaged by Mick Canning on behalf of Ballyness to provide painting services at the corner of Park Avenue and Little Street, Coffs harbour ("the Site"), including the paint of a bull nose awning, at the Site;

(c)Was an employer and, in the course of the defendant's undertakings, employed Daniel Clifford, and contracted Jason Drew, to perform work at the Site.

2On 3 April 2011, which was Easter Saturday, Inspector Jeffery Bell who was on leave observed the defendant's contractor, Jason Draws painting and/or working on a bull nose awning at the site approximately 3.5 meters above the ground.

3Inspector Bell also observed another person moving a mobile aluminium scaffold in front of the person, however the scaffold was not moved close enough to provide adequate fall protection for the worker on the bull nose awning.

4The inspector was off duty at the time, however, approached the workers and identified himself as a WorkCover Inspector and advised them to move the scaffold along to provide fall protection for the worker on the awning as he was at risk of falling.

5The worker on the scaffold (Daniel Clifford) stated that he would get a harness for the working on the awning (Jason Drews).

6When the defendant returned he was told by the workers that a person who said he was from WorkCover had warned them.

7Inspector Bell returned to the approximately half an hour later. The scaffolding had not been moved or tied and Mr Drews did not have a harness and was still at risk of falling.

8On 9 April 2010, Inspector Bell issued the defendant with Penalty Notice No 7050407449 (Failure to ensure the health, safety and welfare of employees on 3 April 2010) and an Improvement Notice 7-201964 (for work on roof with inadequate fall protection).

Decision last updated: 22 March 2012