Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Brandie v Phillips [2012] NSWIRComm 137
• Hearing dates: 20 November 2012
• Decision date: 03 December 2012
• Jurisdiction: Industrial Court of NSW
• Before: Haylen J

Decision

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

In relation to Phillips Roofing (Newcastle) Pty Ltd:

(a) the defendant, Phillips Roofing (Newcastle) Pty Ltd, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter IRC 542 of 2009 to which the defendant entered a plea of guilty;

(b) the defendant is fined the sum of $75,000 with half that amount to be paid to the prosecutor by way of moiety;

(c) the defendant is to pay the costs of the prosecutor in the agreed sum of $7500.

In relation to Richard Phillips:

(a) the defendant, Richard Phillips, is found guilty of a breach of s 66(a) of the Occupational Health and Safety Act 2000 as particularised in the Application for Order in Matter IRC 541 of 2009 to which he entered a plea of guilty;

(b) the defendant is fined the sum of $2750 with half that amount to be paid to the prosecutor by way of moiety;

(c) the defendant is to pay the costs of the prosecutor in the agreed sum of $7500.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) s 66(a) - roofing work performed at height - fragile skylight not discovered prior to work commencing nor lack of safety net - employee falls nearly 9m - serious injuries suffered in fall - Inspector issues a s 62 notice to attend for interview - refusal to attend interview - pleas of guilty entered shortly before trial - both offences held to be serious breaches of Act - comprehensive failure of safe work system exposed - general and specific deterrence - subjective factors considered - penalties imposed
• Legislation Cited: Fines Act 1996; Occupational Health and Safety Act 2000
• Category: Principal judgment
• Parties: Inspector Phillip Brandie (Prosecutor); Richard Phillips (Defendant in IRC 2009/541); Phillips Roofing (Newcastle) Pty Ltd (Defendant in IRC 2009/542)
• Representation: Mr Reitano of counsel (Prosecutor); Mr Edwards of counsel (Defendants); Criminal Law Practice, Legal Group; WorkCover Authority of NSW (Prosecutor); Harris Wheeler Lawyers (Defendants)
• File Number(s): IRC 541 of 2009; IRC 542 of 2009

Judgment

1 In mid-April 2007, roofing repair work was being carried out at a factory site in the suburb of Cardiff located within the City of Lake Macquarie. Phillips Roofing (Newcastle) Pty Ltd ("Phillips Roofing") was performing this work and during the course of replacing the roof, an employee, Mr Kerry Day, fell approximately 9 metres through a brittle and fragile skylight roof panel to the ground below and as a result suffered numerous injuries.

2 Arising from this workplace accident and a WorkCover investigation, a number of proceedings were commenced in this Court alleging various breaches of the Occupational Health and Safety Act 2000 ("the Act). Those proceedings were commenced in April 2009. For a considerable time there was a dispute as to the identity of Mr Day's employer and this ultimately led to some interlocutory applications. Further adjournments arose in view of Court Appeal proceedings that may have shed light on the method of pleading and particularising charges under the Act. These various matters remained unresolved for a considerable time with the defendants maintaining pleas of not guilty and ultimately the Court listed the matters for a four-day hearing in November 2012. Towards the end of the week prior to the hearing, the Court was notified that pleas of guilty would be entered in relation to two matters and that the prosecutor would withdraw a number of other matters. Those arrangements were formalised before the Court on the first hearing day.

3 The matters that remained before the Court were a prosecution under s 8 (1) of the Act against Phillips Roofing and separate proceedings for a breach of s 66(a) of the Act taken against Mr Richard Phillips. The s 8(1) charge against the defendant corporation was particularised in an Amended Application for Order in the following terms:

On 18 April 2007 at 10 Ranton Street, Cardiff in the State of New South Wales ("the premises"), the defendant being an employer, failed to ensure the health, safety and welfare at work of all its employees and in particular, Kerry Day, contrary to section 8(1) of the Occupational Health and Safety Act, 2000

The particulars of the risk are:

(a) The health and safety of employees were put at risk of injury from falling from a height of approximately 8.9 metres whilst undertaking roofing work.

The particulars of the acts or omissions in failing to eliminate the risk are that:

(b) The defendant failed to undertake a risk assessment which considered and identified the hazards associated with working at heights at the premises, in particular:

(i) the risks of using components of the fall arrest device that were damaged or defective;

(ii) the risks of using components of the fall arrest device that were not compatible with one another;

(iii) the risks of using a horizontal lifeline system that did not cover all areas on the roof;

(iv) the risks of working on or around brittle or fragile roof such as skylight panels; and

(v) the risk of passing intermediate anchorage points whilst disconnected from the horizontal lifeline.

(c) The defendant failed to provide a safe system of work to its employees in relation to the roofing work at the premises in that if failed to take the following measure:

(i) inspect the under-side of the roof to determine the extent of fragile roof material, existence of any safety mesh and the structural soundness of the roof and safety mesh in accordance with the Code of Practice: Safe Work on Roofs, Part 1 - Commercial and Industrial Buildings.

(d) The defendant failed to provide information, instruction and training to persons undertaking work at the premises in relation to the performance of work at heights in that it failed to take the following measure:

(i) Ensure that all persons using the device had received training in the selection, assembly and use of the fail arrest system in accordance with clause 56(2)(d) of the Occupational Health and Safety Regulation 2001.

(f) The defendant failed to warn persons of the risks associated with working on or around brittle or fragile roof such as skylight panels,

(g) The defendant failed to ensure that there was implemented and maintained at the premises adequate means of fall protection to prevent people who were working at height from falling in that if failed to take the following measures:

i. ensure that components of the fall arrest device that showed wear or weakness which may have caused the device to fail were not used in accordance with clause 56(2)(c) of the Occupational Health and Safety Regulation 2001;

ii. ensure that components of the fall arrest device were compatible with one another in accordance with the Code of Practice: Safe Work on Roofs, Part 1 - Commercial and Industrial Buildings;

(iii) ensure that the fall arrest system used had a maximum fall distance of 1.8 metres in accordance with the distance specified on the lanyard used and the Code of Practice: Safe Work on Roofs, Part 1 - Commercial and Industrial Buildings, and

(iv) ensure that the horizontal lifeline system used covered all areas on the roof; and

(v) ensure that persons could pass intermediate anchorage points without disconnecting from the horizontal lifeline.

(h) As a result of the defendant's failures there was a risk of injury to employees present at the premises of falling from heights. The serious injuries sustained by Kerry Day were a manifestation of that risk.

4 In relation to Mr Richard Phillips the s 66(a) breach was particularised in the following terms:

(a) On 9 September 2008 a section 62 Notice was issued to the defendant by Inspector Phillip Brandie of the WorkCover Authority of New South Wales pursuant to section 62 of the Act.

(b) On 9 September 2008 the Notice was served by registered post at the defendant's address at 8 Yerambla Close, Eleebana in the State of New South Wales.

(c) The Notice required the defendant to appear before Inspector Brandie at 11.00 am on 26 September 2008 at the Newcastle office of the WorkCover Authority of New South Wales at Level 1, Suite C, Corner Fitzroy and Cowper Streets, Carrington in the State of New South Wales and give either orally or in writing any such evidence.

(d) On 26 September 2008 the defendant was in breach of section 66(a) of the Act in that he had refused or had failed to appear and give evidence on 26 September 2008 without a reasonable excuse.

5 The evidence for the prosecutor comprised of an Agreed Statement of Facts and a number of annexures. The annexures contained the following documents: a copy of a quote for the work at Cardiff in the name of R D Phillips Roofing and an altered copy of the quote in the name of Phillips Roofing; Australian and New Zealand Standard for industrial fall arrest systems and devices Part 2 dealing with horizontal lifeline and rail systems; Australian/New Zealand Standard industrial fall arrest systems and devices Part 2 dealing with horizontal lifeline and rail systems in Supplement 1 concerning prescribed configurations for horizontal lifelines; an interim engineering report prepared by Mr Chris Turner of WorkCover, NSW; a WorkCover publication entitled "Safe Work on Roofs - Part 1 - Commercial and Industrial Buildings Code of Practice 1993"; a s 62 notice issued by Inspector Brandie to Mr Richard Phillips requiring attendance at the Newcastle office on 26 September 2008; a WorkCover factual inspection report prepared by Inspector Brandie and 28 photographs taken by Inspector Brandie of the worksite where the accident occurred and equipment found at that site.

The Agreed Statement of Facts appears as an annexure to this judgment.

6 Mr Turner was the State co-ordinator - Engineering Advice, in the engineering team of the Strategic Specialist Service Group of WorkCover. He held the following relevant qualifications: B.E. (Civil), a Class 1 doggers certificate of competency, class 1 riggers certificate of competency and, a rope access operators certificate. He had extensive experience and knowledge of working at heights and the operation and use of fall arrest systems. Mr Turner had been provided with five bags of police exhibit evidence arising from the accident involving Mr Day. Mr Turner took approximately 20 photographs of the equipment used, snap locks, the lanyard and energy absorber and the base of an anchor post, including the weld.

7 Mr Turner provided the following summary of his findings following an examination of the fall arrest equipment used at the site on the day of the accident:

1. The horizontal lifeline system did not cover all of the area of potential fall risk in the work area on the roof so the work area was not in compliance with Clause 56 of OHS Regulation.

2. The horizontal lifeline system usage did not comply with the requirements in clause 56(2)(a) to (e) of the OHS Regulation.

3. There is no evidence to indicate that any component of the horizontal lifeline system failed under load, ie as a result of trying to arrest the fall.

4. All connections remained intact except the connection between the lanyard and the mini-bloc snap hook.

5. Therefore either the injured person became detached from the line due to the mini-bloc snap hook failing to close automatically and allowing the connection to the lanyard come apart or he had disconnected from the system prior to the fall.

6. The lanyard snap hook being hooked back onto the lanyard and lack of any evidence that it was done after the fall indicates that it had been deliberately disconnected and back hooked possibly to shorten it to prevent it dragging on the roof.

7. The horizontal lifeline system did not comply with the Australian Standard AS/NZS 1891 series on Industrial fall-arrest systems and devices and did not provide adequate fall protection for persons connected to it whilst working on the roof, for example:

7.1 The design of the system did not comply, most significantly the rope is considered inadequate.

7.2 The components used in the system contained a number of significant defects.

7.3 The installation at the edge of the void and the amount of slack in the line would have resulted in an unacceptable free fall distance before the lifeline tried to arrest the fall.

Mr Turner was not required for cross-examination.

8 For the defendants, two affidavits were read. The first affidavit was sworn by Mr James Phillips who was a director and owner of Phillips Roofing. He stated that he had grown up with Mr Day as a personal friend of his own father and worked with him while in the trade as a roofer. From 2006 he began to taking over parts of his father's company with the sale finalised in March 2007. Mr James Phillips was at the site on the day of the accident. He undertook a safety inspection of underneath the roof and did so with Mr Day and Mr Adam Phillips. During that inspection he failed to notice that a skylight did not have appropriate safety mesh underneath it. Neither Mr Day nor Mr Adam Phillips told him that there was no safety mesh under the skylight and he presumed that they did not notice the absence of safety mesh. He understood that he should have had a closer inspection of the roof to ensure that the skylight had safety mesh. If he had discovered this defect he would have set up a perimeter on top of the roof and around the relevant area and would have placed flags and signs to stop workers going near the skylight. After the inspection was conducted on the day of the accident, Mr James Phillips directed Mr Day and Mr Adam Phillips to work on a section of the roof and he helped them install safety equipment in that area. Mr James Phillips was working on the other side of the roof at the time of the accident and did not see Mr Day fall. Mr Day fell through an area that was 8.5 metres away from the area that was designated for him to work upon.

9 It was Mr James Phillips' understanding that, had Mr Day then been attached to the proper safety system, he could not have physically reached the area where he fell through the skylight. Mr James Phillips knew the length of the safety line and he understood that it was back hooked and so concluded that Mr Day unhooked himself and walked across the roof before falling through the skylight. If he had seen Mr Day unhook himself in this manner he would have instructed Mr Day to re-attach his safety equipment and not to walk across the roof.

10 After the accident Mr James Phillips was served with a notice from WorkCover requiring him to update the safety equipment as it was considered to be out-of-date. He complied with the notice in updating the equipment at a cost of approximately $5500. Mr James Phillips said that, since the incident, he had suffered depression and anxiety as a result of Mr Day's injuries. Mr Day was a close friend of Mr James Phillips and his father but they had been unable to talk since the accident in 2007. Mr James Phillips had observed his father, Richard Phillips, being very distressed about being unable to speak to his personal friend. Mr James Phillips said that Mr Day was more than just a worker to him, that he was a personal family friend and he blamed himself for the accident . He had been attending his general practitioner for depression and anxiety since the accident.

11 Mr James Phillips gave additional oral evidence. He stated that he was paying off his house and that he was supporting a child although not currently married. He was 38 years old. He left school in Year 10 and immediately commenced working with his father and had been in his own employment since that time. He worked with Mr Day every day of the week. His father would pick Mr Day up every morning and take him to work and then take him home at the end of the day. Mr Day was given extra benefits and looked after because he was part of the family business. His father was beginning to get too old to do the work and towards the end of 2006 he and his father decided that James Phillips would take over the business and that commenced to occur. Mr James Phillips inherited the equipment used by his father. While he had taken over the business by March 2007 his father would help him out with cash if he was not paid for a job or would otherwise lend him money. His father still attended worksites from time-to-time and his father was keenly interested in how he was doing in the business. His father was driving James to work because James had lost his licence.

12 Mr James Phillips spoke about how the accident had affected the family and how there had been arguments, friction and upset because of what had happened. He had received treatment from his general practitioner for depression and anxiety and appeared to be upset while giving his evidence. He was worried about what happened to Mr Day and the injuries he had received and that had caused him to be more aware and more careful of his own work and the work performed by work mates. Nevertheless, at times he felt petrified on a roof and felt scared performing the work. He was still running the business but the building industry in Newcastle was enduring tough times. He employed four people and performed work on a mixture of commercial and residential premises. His income was approximately $40,000 per year. His father had equipment manufactured by a Newcastle company that designed and manufactured the equipment for use in the roofing business. Since the accident he had updated and upgraded all the equipment. Mr James Phillips was not cross-examined.

13 In his affidavit, Mr Richard Phillips stated that he had been a close personal friend of Mr Day for 35 years and that he had been extremely distressed and found his fall at the site a traumatic experience. In the past he had spoken to Mr Day on a regular, almost daily basis but more recently had been unable to speak to Mr Day as a rift had arisen between them because of the present proceedings. After the accident he attended on Mr Day at hospital and continued to do so on a weekly basis until he was discharged. Because he was concerned that Mr Day would not have access to his pay, Mr Richard Phillips bought the pay to him in cash and that enabled him to speak to his close personal friend.

14 After the accident Mr Richard Phillips was directed by a WorkCover Inspector to attend an interview. At that time his wife was extremely sick with stress and depression and was undergoing psychiatric treatment. Mr Richard Phillips had requested a report from the psychiatrist on a number of occasions but it had not been supplied. He stated that he was also unwell and suffered from depression and anxiety. When he was directed to attend for an interview with WorkCover he said he was confused because he was not Mr Day's employer and that he had "turned up after everything had happened." He did not understand what Mr Day's fall had to do with him. Mr Richard Phillips was not required for cross-examination.

DELIBERATION

15 In dealing with the objective seriousness of the corporate defendant's offence, counsel for the prosecutor submitted that the essence of the offence was the risk of falling approximately 9 metres while undertaking roof work. The particulars identified a series of acts and omissions and included: a failure to undertake a risk assessment; the failure to provide a safe system of work, in particular the failure to inspect the underside of the roof to determine the extent of the fragile roof material and the existence of safety mesh; the failure to provide information, instruction and training to persons working at the premises by ensuring that persons using safety devices for work at heights had received training in the selection, assembly and use of the fall arrest system; the failure to warn persons of the risk associated with working on and around brittle or fragile roof such as skylight panels; and, the failure to ensure that there was implemented and maintained at the premises adequate means of fall protections to prevent those working at height from falling if they failed to take a number of enumerated measures. Mr Turner's expert report had identified that the fall safety equipment in use did not comply with regulations and was worn and defective such as to condemn the harness being used. This risk should have been well known to the defendant company and James Phillips. It was submitted that Mr Day was lucky to be alive after a fall of approximately 9 metres but his injuries were, nevertheless, serious. Working at this height was clearly dangerous work and there was an obvious risk of falling and the risk of falling was so evident that the issue of foreseeability could not be contested.

16 In terms, the seriousness of the breach was not contested by counsel for the corporate defendant. The submissions for the corporate defendant, therefore, sought to establish that this was not a breach that could be assessed as coming within the most serious level of offences but was more appropriately placed at the lower end of the scale of seriousness. This submission did not seek to minimise the significance of the failure to carry out a risk assessment that would have identified the lack of safety mesh under a particular skylight and the existence of fragile polycarbonate skylighting but the submission relied upon Mr James Phillips' evidence that Mr Day must have detached himself from the fall harness in order to reach the area where the unmeshed and fragile skylight was located.

17 There is some difficulty with accepting this approach in relation to the defendant corporation. Mr Turner's conclusion was that either Mr Day became detached from the line due to the mini-bloc snap hook failing to close automatically and allowing the connection to the lanyard to come apart or, he had disconnected from the system prior to the fall. The Court accepts that analysis and is therefore unable to be satisfied that Mr Day in fact unhooked himself and then fell beyond the reach of the fall safety system. That occurrence is no more likely than the failure of a snap hook: in short, it is quite impossible to determine what was the immediate cause of the fall.

18 This analysis, however, exposes another difficulty with the submission for the corporate defendant. In the exercise of this jurisdiction, the Court has on numerous occasions stated that it is an error to focus on the accident or the cause of the accident and that the proper focus should be upon the risk to safety often exposed by an accident. In this case the particulars to which the plea has been entered identifies a comprehensive failure occurring at many levels. The fall safe equipment itself was not in good condition and in the view expressed by Mr Turner would be condemned. There was a failure to undertake the most fundamental of all tasks, that is, a risk assessment that would have exposed the inadequate nature of the fall safe equipment and the fragile nature of the roof and its lack of safety mesh under a particular skylight. The failure to provide information, instruction and training in the use of the fall arrest system and the failure to warn persons of risks associated with working on or around a brittle or fragile roof were significant omissions as were the failures to ensure that the fall arrest devices were used in accordance with the regulation and the identified codes of practice. Having regard to these matters, the breach is properly assessed to be a serious breach of the Act although the Court notes the concession made by counsel for the prosecutor that, while this is a serious breach, it could not be assessed as falling within the worst category of breach.

19 In relation to Mr Richard Phillips, the failure to comply with a notice issued pursuant to the provisions of the Act is to be regarded as a serious breach. The Act sets out a framework for ensuring the safety of people at work and sets out a variety of mechanisms whereby that may be achieved. One of the important functions of WorkCover Inspectors is to be able to gather information from industry participants in order to properly assess what steps might be taken to address risks that had been identified and to make an assessment of those who may be responsible for the risk of injury arising as a result of inadequate systems of work. To this end the legislature has given certain powers to the Inspectors, including the power to compel attendance for an interview. By refusing to attend the interview in accordance with the notice given under the provisions of the Act, Mr Richard Phillips flouted the authority of the Inspector and ignored his own obligations under the Act. Although the maximum penalty is modest, being set at $11,000, in that context this was a serious breach of that provision.

20 In both cases specific and general deterrence will form a significant element in arriving at an appropriate penalty in each matter. Submissions to that effect made by counsel for the prosecutor were not resisted by counsel for the defendants.

21 There are some subjective mattes to be considered. In relation to the corporate defendant, it is a first offender and entitled to considerations of leniency having regard to that fact. There is no evidence before the Court directly dealing with the company history but it appears from the affidavit evidence that Mr Richard Phillips commenced in the business some 35 years ago although it is unclear whether he was immediately operating the business as a director/owner or was working as an employee. His son came to work in the business with him and between 2006 and 2007 he had commenced operating as the corporate defendant. It was in 2007 that this accident occurred. It is difficult in these circumstances to take an expansive view of the corporate history: the corporation therefore appears to have been in operation for a short time although it was submitted that there had been no other occasions up until the date of hearing where the corporation was charged or found to be in breach of occupational health and safety legislation. Further, the evidence establishes the contrition and remorse of the corporation defendant as indicated in the evidence of Mr James Phillips.

22 Having regard to the history of the matter it is quite impossible to treat the guilty pleas flagged shortly before the hearing was to commence as representing an early plea and attracting the full measure of discount available to the Court. It is relevant that there were a number of associated cases that were withdrawn and that the remaining two matters were able to proceed on the guilty pleas in a time frame that permitted prosecution savings in regard to the gathering of witnesses and the amount of detail necessary for conducting a fully contested hearing in relation to a number of matters. Counsel for the prosecutor frankly and helpfully accepted this aspect of savings.

23 In submissions the Court was requested to take into account the fact that a significant debate about the identify of the employer which had bedevilled the case was capable of early resolution in view of the fact that Mr James Phillips, at an early stage, was willing to indicate that the corporate defendant was indeed Mr Day's employer. The prosecutor, on the other hand, may well have been concerned at the contrary indicators, principally from Mr Day who regarded himself as being employed by Mr Richard Phillips and the hurriedly altered quotation for the job occurring shortly after the accident and changing the identity of the corporate entity quoting for this work. In those circumstances, where there are family arrangements concerning the running of a similar business, the prosecutor was required to establish with as much certainly as possible the precise identity of the employer at the date of this accident. Having said that, the Court was not informed of the matters that ultimately satisfied the prosecutor that the defendant corporation was indeed the employer of Mr Day at the time of the accident. Having regard to all the circumstances, there should be a discount of 15 per cent for the guilty plea entered by the corporate defendant.

24 There was no detailed evidence before the Court as to the financial position of the defendant corporation and very limited information in relation to the financial position of Mr James Phillips. While the corporation engages in commercial and dwelling construction it was asserted that Mr James Phillips earned approximately $40,000 per annum. The company, nevertheless, employs four people and there is no evidence as to whether the income received by Mr James Phillips is augmented in any way by expenses accepted by the defendant corporation. Having regard to the terms of the Fines Act 1996 the Court is unable to reach any conclusion as to the financial position of the corporation. As was indicated during the hearing, the corporation is liable to a maximum penalty of $550,000 and if there was some incapacity to meet any substantial fine, the Court would expect to have been fully informed of those factors. In any event, there is a capacity for any defendant to approach the Registrar in relation to making arrangements for time to pay should there be some financial difficulties in meeting a fine in the required time frame and the WorkCover Authority has indicated in other proceedings that it is also open to receiving submissions seeking the same consideration.

25 In relation to Mr Richard Phillips, nothing of direct relevance was placed before the Court in terms of subjective factors having regard to the nature of his offence. It can be accepted that he was very upset at the injuries sustained by Mr Day in this accident and that the accident caused arguments within the family and the breakdown of a long friendship with Mr Day and that Mr Richard Phillips suffers depression and anxiety. The issue to be addressed, however, is the adequacy of his reasons for not complying with the simple direction to attend an interview with the WorkCover Inspector. It is totally insufficient for him to simply say that he could not see how he could be involved and therefore did not see the necessity to attend the interview. This is a matter he could have raised with the Inspector either prior to the interview or at the interview and it presumes that the Inspector had no other relevant questions in relation to the accident. Unfortunately, the approach of Mr Richard Phillips gave the appearance of defiance and a rejection of the Inspector's authority and his own obligations pursuant to the provisions of the Act. This is a case, however, where it would be appropriate to apply the same discount for the plea of guilty as accorded to the corporate defendant, namely, 15 per cent. It is noted that the defendant is a first offender.

ORDERS

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

In relation to Phillips Roofing (Newcastle) Pty Ltd:

(a) the defendant, Phillips Roofing (Newcastle) Pty Ltd, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter IRC 542 of 2009 to which the defendant entered a plea of guilty;

(b) the defendant is fined the sum of $75,000 with half that amount to be paid to the prosecutor by way of moiety;

(c) the defendant is to pay the costs of the prosecutor in the agreed sum of $7500.

In relation to Richard Phillips:

(a) the defendant, Richard Phillips, is found guilty of a breach of s 66(a) of the Occupational Health and Safety Act 2000 as particularised in the Application for Order in Matter IRC 541 of 2009 to which he entered a plea of guilty;

(b) the defendant is fined the sum of $2750 with half that amount to be paid to the prosecutor by way of moiety;

(c) the defendant is to pay the costs of the prosecutor in the agreed sum of $7500. ANNEXURE

AGREED STATEMENT OF FACTS

1. Phillip Brandie is an inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under section 106(1)(c) of the Act to institute proceedings under the Act.

2. Mr Richard Phillips was the director of R & D Phillips Roofing Pty Ltd (R & D Phillips) R & D Phillips principal place of business was at 8 Yerambla close Eleebana NSW.

3. Mr James Phillips was the director of Phillips Roofing (Newcastle) Pty Ltd Philips Roofings principal place of business was at 13 Moani Street Eleebana NSW.

4. Richard Phillips is the father of James Phillips and of Adam Phillips.

5. On 18 April 2012 Phillips Roofing operated a business of providing roofing services. On 18 April 2012 Phillips Roofing were employers. James Phillips identified himself as a supervisor for Phillips Roofing. Adam Phillips was employed as part of the supervisory staff by Phillips Roofing at the time of the incident.

6. McColl Fabrications Pty Ltd ("McColl") was an engineering company operating from a factory situated at 10 Ranton Street, Cardiff in the State of New South Wales (premises). The factory at the premises was approximately 35 years old. McColl need to have roof repair works done as the roof sheets of the existing roof were leaking and the purlins holding up the roof sheets were rusting. Due to their age the purlins had been painted but had not been galvanised.

7. Prior to 20 February 2007 Mr Phillip West, a manager employed by McColl, organised with Richard Phillips for the removal, replacement and associated works of the factory roof. Phillip West contacted Richard Phillips regarding the roof works. Richard Phillips attended the premises and inspected the roof in order to assess the work to be done.

8. On 20 February 2007 Richard Phillips on behalf of R & D Phillips signed a handwritten quote for the roofing work for McColl for the value of $34,330. This quote was addressed to 'McColl Fab, attention: Phil', and was sent by facsimile on 20 February 2007.

9. On 15 March 2007 McColl's issued a purchase order No. 26008 to R & D Phillips for the roofing work authorising 'R D Phillips' to undertake the roofing work in accordance with the quote dated 20 February 2007.

10. There was no formal written contract in relation to the work that was to be performed other than the quote and the purchase order.

11. Roofing work commenced at the premises approximately one to two weeks prior to 18 April 2007.

12. On 18 April 2007 present at the premises and working at height on the factory roof was Richard Phillips, James Phillips, Adam Phillips and Mr Kerry Day. On that day Kerry Day was performing his usual work duties at the premises including undertaking roofing work as well as dismantling and reconstructing the gutters and down pipes.

13. The roof was approximately 50 metres long and 15.4 metres wide, 8.5 metres above ground level at the edge (gutter), sloping to the roof apex that was situated at approximately 9.5m above ground level. The roof was constructed of corrugated metal roof sheeting supported by steel RSJ frame and trusses. Interspersed between the metal roof sheeting was polycarbonate roof sheeting, designed to act as "skylight" to provide natural lighting to the factory.

14. At the time of the incident, Kerry Day was situated on the northern side of the roof apex assisting James Phillips and Adam Phillips in the removal and replacement of the corrugated metal and Perspex roof sheeting. Richard Phillips was on the ladder used to access the roof of the building.

15. At the time of the incident, a section of the roof sheeting measuring approximately 8 metres by 6 metres had been removed, thus providing an open penetration to the factory floor below.

16. Kerry Day was situated on the intact roof sheeting to the eastern side of the open penetration. While Kerry Day was working on the roof he penetrated a brittle section of the roof sheeting that was made of polycarbonate and fell approximately 8.9 metres to the factory's compacted dirt floor. Kerry Day has no recollection of the incident. Kerry Day was wearing a harness with a rope lanyard attached when he fell.

17. Mr Joseph Marcus, an apprentice boilermaker employed by McColl's was working in the middle of the factory workshop close to where Kerry Day landed. Shortly prior to the incident Joseph Marcus had left his workstation to get a drink of water. When he was walking back he heard a loud noise. He looked across to where the noise was coming from and saw a man hit the floor, bounce up off the floor approximately half a metre and land back on the ground. He looked up and saw that the skylight was broken.

18. At about the same time James Phillips heard noise that sounded 'like a bang'. He looked up and saw that Kerry Day was not on the roof. Adam Phillips heard James Phillips call out to him that "Kerry has fallen".

19. Mr Rian Morrow, Mr Kevin Boadley and Mr Brain Arthur were working in the same area where Kerry Day fell. Brian Arthur rushed over to where Kerry Day had fallen, Kevin Boadley was already with Kerry Day, who was semi conscious and lying in a foetal position. Brian Arthur headed back towards the office and asked Glen Davis to call an ambulance.

20. Brian Arthur went back to assist Kerry Day, as he was the first aid officer at McColl's. Together with Kevin Boadley he checked Kerry Day was still breathing and attempted to make him comfortable. Kerry Day responded throughout this process by moaning.

21. The ambulance arrived shortly thereafter and attended to Kerry Day. Around the same time, Constable Paul Hepplewhite and Constable Javurek arrived at the premises. Ambulance Officer Christensen cut the safety harness off Kerry Day.

22. The police assisted the ambulance officers with Kerry Day as he had become distressed. Whilst assisting the ambulance officers, Constable Hepplewhite noticed shadows of a person on the roof. Constable Hepplewhite requested one of the people present to tell the person to get off the roof immediately.

23. Kerry Day was conveyed by ambulance to John Hunter Hospital. Kerry Day remained in hospital for 55 days following the incident. He suffered multiple broken ribs, right shoulder girdle injuries, a broken right wrist, a fractured femur, a closed head injury, cuts, abrasions and traumatic amnesia.

24. Constable Hepplewhite commenced obtaining witness details when he noticed Richard Phillips walking away from the premises holding the red safety harness which had been cut off Kerry Day. After a brief argument with Richard Phillips, Constable Hepplewhite gained possession of the harness and entered it as a crime scene exhibit. Constable Paul Hepplewhite spoke to Richard Phillips who informed him that he had his two sons working with him that day.

Employment

25. Kerry Day began working with Richard Phillips in 1975 as a roofer. Kerry Day had always understood that Richard Phillips was his boss. Kerry Day was paid cash in hand by Richard Phillips and was not issued with any payslips. After the incident Richard Phillips continued for 6 months to pay Kerry Day's wages in cash by delivering it first to Kerry Day's wife and then to Kerry Day at his home.

26. Kerry Day was issued two group certificates for the financial year ending 30 June 2007. The first group certificate was issued by R & D Phillips for the period between 1 July 2006 and 22 March 2007. The second group certificate was issued by Phillips Roofing for the period between 23 March 2007 and 30 June 2007

27. Whilst Kerry Day was in hospital James Phillips visited him and informed him that at the time of the incident Phillips Roofing was his employer. Kerry Day was not informed of this change of employer prior to the incident. He had always understood James Phillips was his workmate and the son of his boss.

Actions after the incident

28. On 23 April 2007 at 7:45am a hand written quote dated 20 February 2007 for roofing work to be undertaken at the McColl's premises, totalling $34,330, was sent by facsimile from Phillips Roofing. This invoice is identical to the quote provided to McColl's on 20 February 2007 by R.D Phillips except that the initials "R.D" prior to the words "Phillips Roofing" in the top right corner of the second invoice have been removed. The address nominated on the second handwritten quote was the principal place of business for R.D Phillips and not that of Phillips Roofing. The quote therefore reads "Phillips Roofing" instead of "R.D Phillips Roofing".

29. On or about 21 May 2007, McColl received a hand written Tax Invoice/Statement No: 425180 dated 21 May 2007 from "Phillips Roofing - 13 Moani St Eleebana, 2282" requesting that McColl Fab "supply me with a cheque for the amount of $34,330". This invoice was signed R. Phillips. On 25 May 2007, McColl issued a company Commonwealth Bank cheque number 133722 to Phillips Roofing for $34,330 for payment of the roofing work, including the roofing work on the day of the incident. Phillip West who approved the payment, understood this cheque was to be paid in satisfaction of the roof works being completed to Richard Phillips on behalf of his company "Phillips Roofing".

Risk Assessment

30. On the day of the incident no adequate risk assessment was conducted to determine the hazards and the level of risk posed when working at heights Both Adam and James Phillips stated that a toolbox meeting was conducted prior to commencement of work at the premises during which James identified the presence of brittle roofing on the roof at the premises. Adam Phillips stated that only a "visual inspection" of the condition of the roof sheeting took place at a toolbox meeting. The visual inspection of the underside of the roof did not identify that there was no safety mesh in place, in the area from which Kerry Day fell and the associated risks of working on the roof without adequate provison of safety mesh.

31. James Philips stated that Adam Phillips and Kerry Day were present at the toolbox meeting. James Phillips also stated that there was no written record taken of the toolbox meeting.

32. Kerry Day has no memory of the day of the incident, however he does recall that it was the usual practice to meet with his colleagues before the commencement of work to discuss the roofing work. Kerry Day had not participated in a written risk assessment for roofing jobs, whilst working with the defendant.

Safe system of work

33. Phillips Roofing did not provide site-specific induction to Kerry Day in relation to the premises.

34. James Phillips prepared and provided a Safe Work Method Statement (SWMS) for the premises. Kerry Day did not receive a copy of the written SWMS prior to commencing work at the premises on 22 April 2007 and he had not seen a copy of the SWMS before commencing work on the day.

35. Adam Phillips was unable to recall whether he had been provided with a copy of the SWMS prior to commencement of the roofing work at the premises on that day. He was familiar with the document as it was a generic document that had been used on other jobs before.

36. The SWMS identified the risk of falling from heights and nominated that the appropriate controls to be put in place were to ensure that safety harnesses and retractables were worn at all times. The SWMS did not identify or assess the hazard of working on or around fragile and brittle roof sheeting.

37. Approximately an hour after the incident occurred, James Phillips sent by facsimile a copy of the SWMS to McColl time marked 12:01pm.

38. At the time of the incident there was no formal system in place to ensure workers at premises had received, read the SWMS and followed the procedure outlined in the SWMS. There was in place an informal system of work which was communicated verbally amongst the employees regarding the allocation and performance of tasks. Essentially, though the workers were left to their own devices to get the job done.

Fall Prevention and Fall arrest system

39. At the time of the incident there were no perimeter or gutter railings, safety mesh, warning signs temporary handrail systems or walking boards to prevent a fall whilst working from heights.

40. Phillips Roofing were aware that at the time of the incident there were no perimeter or gutter railings, safety mesh, warning signs, temporary handrail systems or walking boards to prevent a fall whilst working from heights.

41. Phillips Roofing provided safety harness for use at the premises and had an informal system of checking that the equipment was in good condition.

42. The fall arrest system in use at the time of the incident consisted of a horizontal lifeline, temporary anchors, rope lanyard, fall arrest harness and associated connective devices, such as snap hooks. A retractable fall arrest device was also provided for use. Kerry Day was wearing a fall arrest harness and lanyard assembly. The lanyard assembly comprised of a fibre rope measuring approximately 1.8 metres in length. There was also a "snap" hook provided to each end of the lanyard. When in use, the harness and lanyard was connected in series to the retractable fall arrest device, then to the safety lifeline. The lifeline was threaded through temporary anchor devices that were attached to the roof structure around the perimeter of the open penetration.

43. At the time of the incident, up to four persons were using this anchorage system at any one time.

44. James Phillips stated that his father, Richard Phillip had the anchors that were in use on the premises, made by a gentleman at Warners Bay.

45. James Phillips relied upon his experience and general knowledge in selecting the anchors and the suitable location of the anchor points.

46. The anchor system being used at the time of the incident did not allow for users to pass intermediate anchorage points without disconnecting, their lanyard from the safety lifeline. No provision was made at the premises for a second or dual attachment lanyard.

47. At the time of the incident, the lifeline in use was manufactured of natural rope fibre rather than wire as required by Australian Standards 1891.2:2001 Industrial Fall Arrest Systems and Devices.

48. Kerry Day stated that the usual method used when tensioning the horizontal lifeline involved threading the lifeline through the anchor eyelet then "wrap it around a couple of times then tie it off, then go to the next one, put it through the hole and the same thing again".

49. When inspected following the incident, there was no evidence of the safety line having been provided with the prescribed end fittings or tensioning devices as required by Clause 7 of Australian/New Zealand Standard 1891.2 Supp 1:2001- Hardware Requirements. Only one end of the line was fitted with a "snap hook".

50. The lanyard assembly in use at the time of the incident consisted of:

i. a "natural" rope fibre lanyard of approx 1.8metre long and,

ii. a retractable (Type 2) fall arrest device comprising a retractable lifeline made of synthetic webbing, which was stored on a reel within a protective housing and had a working length of up to 2.4.metres

51. This type of arrest device is classified as a type 2 fall arrest device according to Clause 1.4(b) the Australian/New Zealand Standard 1891.3:1997 Industrial Fall Arrest Systems and Devices - Fall Arrest Devices.

52. Clause 2.4 of the Australian/New Zealand Standard 1891.3:1997 Industrial Fall Arrest Systems and Devices - Fall Arrest Devices recommends that a lanyard should not be used with Type 2 fall-arrest devices due to the possibility of an increase in free-fall distance.

53. The harness and lanyard assembly being used by Kerry Day on the day of the incident was connected to the fall arrest device which was in turn connected to the static line.

54. Clause 2.4 of the Australian/New Zealand Standard 1891.1:1995 Industrial Fall Arrest Systems and Devices - Safety Belts and Harnesses requires that the lanyard assembly shall "be as short as practicable" with a working slack length not more then 2.0 metres.

55. When the rope lanyard that was in use at the time of the incident was connected in assembly with the retractable fall arrest device, the configuration was such that the working slack of the assembly was greater than 2.0 metres. Where Mr day fell was at least 6 metres from the furthest extension of the rope.

56. Further, the lanyard in use at the time of the incident did not have an energy absorber.

57. Clause 5.1.2 of the Australian/ New Zealand Standard 1891.4:2000 Industrial Fall Arrest Systems and Devices - Selection, Use and Maintenance requires that when in use, Type 2 fall arresters should be anchored at a point "above" the user, such that the device is not offset more the 30 degrees from the vertical position.

58. The retractable device situated at roof level on the day of the incident was laying at approximately 90 degrees from the vertical position.

59. Immediately following the incident, the snap hooks attached to each end of Kerry Day's lanyard were inspected and it was revealed that the spring mechanisms forming part of the snap hook latch or "gate" were missing from each snap hook.

60. Further inspections of the latch mechanism of each snap hook showed that they were unable to be locked into position and they could be opened freely with one movement.

61. On 29 January 2010, Mr Christopher John Turner, State Co-ordinator Engineering Advice in the Strategic Specialist Services Group, WorkCover NSW provided a report in relation to the fall arrest system used on the day of the incident.

Training, instruction, assessment and supervision

62. James Phillips nominated himself as the supervisor at the premises on the day of the incident. James Phillips relied on Kerry Day's experience in the industry. James Phillips did not have any relevant certificates of competency such as any riggers or scaffolding certificates

63. Kerry Day was not provided with any training or instruction regarding the hazards of working at heights, nor had he received any training, instruction or assessment in the inspection and maintenance of the safe use of fall arrest systems, maintenance of safety harnesses and the associated equipment. Rather, he relied on his on the job experience.Kerry Day did not posses any relevant certificates of competency in regards to undertaking roofing work.

64. Prior to the incident, Adam Phillips' formal training in relation to roofing work consisted of undertaking the "Workcover Induction Course".

65. James Phillips had not undertaken specific training in relation to the safe use of fall arrest systems; maintenance of safety harnesses and the associated equipment and working at heights. James Phillips relied primarily on Kerry Day's work experience as a measure of competence to undertake work at heights and in the use of fall arrest systems.

66. The defendant had no formal competency assessment systems and relied principally on ad hoc on the job assessments of workers competency.

Brittle and Fragile Roofs

67. James Phillips had identified the presence of brittle roofing on the McColl roof at the premises. There were no warning signs erected on the roof to warn employees or anyone else of the fragile or brittle nature of the roof, or walking boards to cover the brittle section of roof through which Kerry fell.

68. The brittle roof area was outside the area in which the work was being carried out at the time. It was also outside the area in which Mr Day was permitted to work when properly attached.

69. Adam Phillips stated that he believes that a sheet of old tin was used to prevent the fall of persons working on the brittle or fragile sections of the roof, however there was no evidence of the old tin sheet as described by Adam Phillips at the relevant location on the roof or at the site or that

The Code of Practice

70. The 'Code of Practice Safe Work on Roofs, Part 1 - Commercial and Industrial Buildings' ('Code of Practise') applied in respect of work being undertaken at the premises.

71. The Code of Practice provided that provision should be made to prevent people from falling if work was carried out within two meters of any edge of a new or existing roof from which people could fall a distance of more than two meters. The Code of Practise recommended the use of safety mesh and guardrails. Other methods such as safety nets and scaffolding or a combination of them are recommended only in circumstances where safety mesh and guard rails could not be used.

72. Further, the Code of Practice required that the employer or person in control should inspect the under-side of the roof to determine the extent of fragile roof material, the existence of safety mesh and the structural soundness of the roof. Further, they should also provide temporary walkways where any person is required to work on or use by means of access any part of the roof sheathed with brittle material.

Section 62 Notices

73. On 9 September 2008 a section 62 Notice was issued to Richard Phillips, the director for the corporation, requiring him to appear on 26 September 2008 for an interview in relation to this incident.

74. The Notice was served by way of registered post on 9 September 2008 at the defendant's address at 8 Yerambla Close, Eleebana in the State of New South Wales.

75. On 26 September 2008 the defendant did not appear for an interview and failed to comply with the section 62 Notice.

76. On 4 June 2008 a section 62 Notice was issued to James Phillips, the director for the corporation, requiring him to appear on 1 July 2008 for an interview in relation to this incident.

77. The Notice was served by way of registered post on 9 September 2008 at the defendant's address at 13 Moani Street Eleebana in the State of New South Wales.

78. On 1 July 2008 the defendant did not appear for an interview and failed to comply with the section 62 Notice.

Other Matters

79. The defendants have no prior convictions.

Decision last updated: 03 December 2012