Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Bultitude v Eagles [2012] NSWIRComm 139
• Hearing dates: 24 May 2012, 22 November 2012
• Decision date: 04 December 2012
• Jurisdiction: Industrial Court of NSW
• Before: Haylen J

Decision

A In relation to Glen Robert Eagles:

(i) the defendant, Glen Robert Eagles, is found guilty of a breach of s 8 (2) of the Occupational Health and Safety Act 2000 by operation of s 26(1) of that Act as particularised in Matter IRC 253 of 2011 to which the defendant entered a plea of guilty;

(ii) the defendant is fined the sum of $9500 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 a sum as agreed or, in the absence of agreement, as ordered by the Court.

B In relation to Lenara Pty Ltd:

(i) the defendant, Lenara Pty Ltd, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in Matter IRC 256 of 2011 to which the defendant entered a plea of guilty;

(ii) the defendant is fined the sum of $95,000 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 a sum as agreed or, in the absence of agreement, as ordered by the Court.

C In relation to Anthony James Durheim:

(i) the defendant, Anthony James Durheim, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 by operation of s 26(1) of that Act as particularised in Matter IRC 255 of 2011 to which the defendant entered a plea of guilty;

(ii) the defendant is fined the sum of $9500 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 a sum as agreed or, in the absence of agreement, as ordered by the Court.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1), s 8(2), s 26(1) - work being performed from scaffolding on construction site - scaffolding used by sub-contractors - sub-contractor removes ledger support to enable work to be performed in confined space - ledger not replaced - next sub-contractor to use scaffolding falls when work platform collapses because of absence of ledger support - requirement for weekly inspection of scaffolding - no inspections carried out - unqualified persons prohibited from adjusting or altering scaffolding - scaffolding altered on two occasions by unqualified person - serious injuries received in fall - guilty pleas entered by three defendants - offences found against construction manager, painting company sub-contractor and its director - serious breach - general and specific deterrence - subjective factors - early pleas entered - fines imposed
• Legislation Cited: Occupational Health and Safety Act 2000 `; Sentencing Act 1989
• Category: Principal judgment
• Parties: Inspector Rick Bultitude (Prosecutor); Glen Robert Eagles (Defendant in 11/253); Anthony James Durheim (Defendant in 11/255); Lenara Pty Ltd (Defendant in 11/256)
• Representation: M Magee of counsel (Prosecutor); Ms P Kerr of counsel (Defendant in 11/253); Mr K Pierce of counsel (Defendants in 11/255 and 11/256); Criminal Law Practice, Legal Group; WorkCover Authority of NSW (Prosecutor); Budd & Piper, Solicitors (Defendants in 11/255 and 11/256)
• File Number(s): IRC 253 of 2011; IRC 255 of 2011; IRC 256 of 2011

Judgment

1 The three defendants before the Court have entered pleas of guilty in relation to a workplace accident that occurred at a construction site in mid-March 2009.

2 At the time of the accident Mr Glen Eagles was employed as a construction manager by a company known as C & E Structures Pty Ltd ("C & E"). C & E was usually engaged in the construction of residential/commercial premises and was involved in construction and project management. C & E had entered into a contract with Bangalow Creek Company Pty Ltd ("Bangalow") for the provision of construction management services in relation to the construction of a food manufacturing factory in Banksia Driver, Byron Bay.

3 On this project Mr Eagles was the C & E construction manager. C & E employed Mr John Power as the site supervisor for the project. At this construction site C & E undertook a number of tasks, including obtaining trade contractors, administrating and maintaining a budget and the general works associated with the construction. C & E engaged a number of sub-contractors to undertake various works in relation to the construction of the factory. Those sub-contractors included Lenara Pty Ltd ("Lenara"), a company performing painting and decorating services, including the sealing of gyprock. Mr Anthony Durheim was a director of Lenara. At this site Lenara employed Mr Robert Day as a leading hand painter and Mr Jessie Dowd as a painter. Mr Durheim was also a director of Premier 3D Painting Pty Ltd ("Premier ") and at this site, Premier employed Mr Walker as a painter. At all relevant times Lenara was undertaking painting and decorating services at the project.

4 In March 2009 scaffolding had been erected in a void in the south-eastern corner of the office/reception area of a factory building on the site. The scaffolding was erected by a specialist and licensed scaffolder, Wiggins Scaffolding Pty Ltd. In the course of the work at the site C & E, as part of its construction management role, entered a sub-contract agreement with Mr Levi Alexander, a self-employed plasterer trading as Alexander Plastering ("Alexander Plastering"). Mr Alexander was to perform plastering and gyprock setting services at the premises.

5 Mr Alexander regarded the scaffolding as being erected mainly to assist work on the ceiling but the work he was performing required access to a wall area around a window located in the wall of the stairwell immediately below the level of the scaffolding work deck. Mr Alexander required access to this area so he could perform plastering work. During the course of this work Mr Alexander asked Mr Power to arrange for the scaffolding to be modified to allow him to perform the work. He was present when Mr Power and a labourer adjusted the scaffold in the void area to drop down and thus allow Mr Alexander to position himself to perform the work and finish the plastering in that section. Despite this modification Mr Alexander felt that he was still unable to properly obtain access to the area in order to complete the plastering work so he removed a ledger from the scaffolding that was adjacent to the stairwell. Mr Alexander did not inform Mr Power or anyone from C & E that he had removed the ledger from the scaffolding.

6 After Mr Alexander had removed this ledger he did not replace it. Mr Day was later required to use the scaffolding in order to seal the gyprock in the same area where Mr Alexander had been working. While Mr Day was performing this work a plank upon which he was standing dislodged from the scaffolding work deck resulting in Mr Day falling from the work deck approximately 4.6 metres to the concrete floor below. The steel plank dislodged from the scaffolding deck because the ledger was missing from its correct position: the ledger would ordinarily have assisted in keeping the steel plank in its position in the work deck. The missing ledger providing that support was the ledger that had been taken away by Mr Alexander at some time prior.

7 As a result of this accident Mr Day sustained a fractured pelvis, five fractured ribs, a punctured lung, a fractured left shoulder, a fractured left arm, a fractured disc in the middle lower back and multiple fracture injuries. It appears that as at February 2010 Mr Day was still unable to return to pre-injury duties but Lenara and Mr Durheim were able to provide him with some selected duties driving a truck delivering paint and that work was available for a few hours every Tuesday.

8 Arising from this accident investigations were undertaken by the WorkCover Authority and prosecutions were commenced in the Court. In relation to C & E, a prosecution was brought alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"): against Mr Eagles (as a person concerned in the management of C & E) a prosecution was brought under s 8(1) of the Act by operation of s 26(1). At the time of the hearing C & E was in liquidation and that matter is not before the Court. Consideration is being given to whether that prosecution should continue. Proceedings were also commenced against Lenara for a breach of s 8(2) of the Act and against Mr Durheim for a breach of s 8(2) by virtue of the operation of s 26(1) of the Act.

9 Although these proceedings were brought under both s 8(1) and s 8(2) the particulars, having regard to that fact, were, nevertheless, in similar terms. The particulars alleged against Mr Eagles therefore indicate the nature of the particulars alleged in the matters of Lenara and Durheim. The particulars in Mr Eagles' matter were as follows:

The particulars of the changes are:

(a) at all material times the defendant was a person concerned in the management of the corporation;

(b) the corporation was an employer;

(c) the corporation was conducting an undertaking at the premises, namely the provision of construction management works involving the management, coordination and supervision of the construction of a factory building at the premises;

(d) the premises were the corporation's place of work;

(e) Robert Thomas Day was not an employee of the corporation;

(f) Robert Thomas Day was at the corporation's place of work.

(g) Robert Thomas Day was exposed to a risk to his health and safety;

(h) the risk arose from the corporation's conduct of its undertaking.

The particulars of the risk are:

(i) the "risk" referred to is the risk of persons performing painting work at heights of approximately 4.6 metres falling from the work platform of the scaffold erected adjacent to and over the internal stairwell of the factory being constructed at the premises.

Particulars of the Corporation's failings in relation to inspection and auditing of the scaffold erected at the premises

(j) the corporation failed to have a system that required a formal documented scaffold inspection and audit performed by a suitably qualified person in respect of scaffold erected at the premises to ensure that the scaffolding was properly erected and maintained to prevent persons from falling from the work platforms on the scaffold.

Measures the Corporation should have taken but failed to take

(k) the corporation should have but failed to take the following measures:

(l) the corporation should have in accordance with its own system outlined in the document titled "C & E Structures, Construction & Project Management, Site Specific Induction" undertaken on a weekly basis, a formal documented scaffold inspection and audit, performed by a suitably qualified person in respect to scaffold erected at the premises to ensure that the scaffolding was properly erected and maintained to prevent persons from falling from the work platforms on the scaffold.

Particulars of the Corporation's failings in relation to working

from scaffolding

(m) the corporation failed to ensure that the scaffolding used by persons, other than its employees, whilst performing work at height at the premises was erected and maintained in a manner that provided for it to be used without risk to health and safety.

Measures the Corporation should have taken but failed to take

(n) the corporation should have but failed to take the following measures to ensure that the scaffolding used by persons, other than its employees, performing work at height at the site, was erected and maintained in a manner that provided for it to be used without risk to health and safety, namely:

(i) require that the scaffold was constructed safely, with all necessary components properly in place and in particular that all ledgers were properly in place;

(ii) ensure the provision of safe access to and from the scaffold work platform;

(iii) engage a properly qualified scaffolder to inspect and replace any missing components such as ledgers, and prohibit access to the scaffolding work platform until that had been done.

Particulars of Corporation's failings in relation to systems of work

(o) the corporation failed to ensure that systems of work used by the employees of its sub-contractor when working at heights of approximately 4.6 metres at the premises, were safe and without risks to health.

Measures the Corporation should have taken but failed to take

(p) The corporation should have taken but failed to take the following measures in order to ensure that systems of work used by the employees of its painting subcontractor, when working at heights of approximately 4.6 metres at the premises, were safe and without risks to health, namely:

(ii) require its painting subcontractor to prepare and provide to its employees a Safe Work Method Statement for work at height at the premises that detailed the requirement that work at height not be undertaken without an adequate fall prevention system.

(ii) ensure that persons other than its employees working at the premises were provided with and/or using an adequate fall prevention system whilst working at heights such as a scaffold work platform with handrails; and

(iii) ensure the provision of safe access to and from the scaffold work platform.

Particulars of the Corporation's failings in relation to information, instruction and training

(q) the corporation failed to provide information and instruction to persons who were not its employees necessary to ensure their health and safety whilst undertaking work at heights at the premises.

Measures the Corporation should have taken and failed to take

(r) The corporation should have taken but failed to take the following measures in order to ensure information and instruction was given to persons, who were not its employees, in relation to working at heights:

(i) provide a site induction or pre-work briefing to Robert Thomas Day, which addressed:

the requirement to undertake a formal documented Hazard identification and risk assessment before commencing work at heights at the premises;

the risks of falling associated with the use of the scaffold for performing work at height at the premises; and

that he was not permitted to work at height unless:

(i) handrails were installed on the scaffold work platforms from which painting work was to be performed, or

(ii) that he used an adequate fall prevention system such as a harness.

Particulars of the Corporation's failings in relation to supervision

(s) the corporation failed to provide such supervision to its subcontract tradespersons as was necessary to ensure the health and safety of persons, who were not its employees, whilst working at heights from scaffolding.

Measures the Corporation should have taken and failed to take

(t) The corporation should have taken but failed to take the following measures, namely:

(i) to provide such supervision and monitoring of its subcontractors at the premises as was necessary to ensure that no unauthorised modifications of scaffolding were undertaken at the premises;

(ii) supervise its subcontractor's employees undertaking painting work at height at the premises to make sure they did not use the scaffold adjacent to and over a stairwell at the premises, which scaffolding did not comply with Australian Standards 1576.

As a result of the acts and omissions of the corporation, persons who were not its employees, and in particular Robert Thomas Day, were placed at risk of injury.

The injuries sustained by Robert Thomas Day were a manifestation of that risk.

10 The evidence for the prosecution in relation to Mr Eagles' matter was contained within an Agreed Statement of Facts together with a number of annexed documents as follows: a number of coloured photographs taken by Inspector Dall; a factual inspection report prepared by Inspector Dall; C & E Structures Pty Ltd Brook Farm Factory OHSE Management Plan; C & E Structures Induction Register for Brook Farm Factory Project and the site specific induction for Brook Farm Factory; Lenara Pty Ltd and Premium 3D Painting Pty Ltd occupational health and safety injury management system for C & E Structures at Brook Farm project; OHSE 003-Occupational Health Safety and Environment policy dated 2 September 2008; OHSE 004-Hazard Identification - Risk Assessment and Control; and, OHSE 006- Risk Matrix. The matters of Lenara and Durheim were also the subject of an Agreed Statement of Facts. The same annexures referred to in Mr Eagles' case appeared as annexures in relation to Lenara and Mr Durheim. In view of the differences in the Agreed Statement of Facts, both statements will appear as annexures to his judgment with the Statement regarding Mr Eagles appearing as Annexure A and the Statement regarding Lenara and Mr Durheim appearing as annexure B.

11 Mr Eagles provided an affidavit in relation to the matters raised in his case. He confirmed that he was engaged by C & E as a construction manager at the Brook Farm project at the time Mr Day was injured as a result of falling from the scaffolding on the site. He had assumed the role of site supervisor on a temporary basis while Mr Power was on leave between 12 - 18 March 2009. He said his responsibilities were to give induction training to sub-contractors and other visitors to the site and facilitate the day-to-day running of the site.

12 Mr Eagles had not conducted an inspection of the scaffolding used by Mr Day on the day of the accident after taking up the role of site supervisor as he assumed that the scaffolding had been untouched since its installation in accordance with the instructions in the site-specific induction. After the accident involving Mr Day he was made aware that Mr Alexander had removed a ledger bar from the scaffolding that Mr Day had used. Mr Eagles said that, had he been aware that this had occurred, he would have engaged the scaffolding contractor, Wiggins Scaffolding, to correct and tag the scaffolding. At no time, however, was he told by Mr Alexander or Mr Power that changes had been made to the scaffolding. He conceded that there were inadequate systems of work in place at the site at the time of the accident to which he was a contributor.

13 In relation to his personal circumstances, Mr Eagles said he was currently employed by an earthmoving contractor as a truck driver/plant operator, working 84 hours per week. He was in the process of separating from his wife following events occurring after the accident and the financial troubles that followed. He had four children aged 14, 12, 10 and 6 and spent as much time as he could with them given his work requirements. He spent approximately five days in every three-week period with his children ,with his wife caring for them when he was away. He contributed to all expenses incurred for the children and the home. Their family expenses were shared with his wife and were described as being "considerable." Combined monthly expenses, including mortgage, living expenses, car loans, credit cards and other loans, totalled more than $16,000 per month and Mr Eagle was responsible for half that amount. His monthly income was just over $6,500 leaving a monthly loss of approximately $1,600.

14 In relation to this incident Mr Eagles said that it caused a break-up of his family. Before the accident his family were close and he spent much more time with his children as he was not working away from home for extended periods: he and his wife were happy. His wife was an accountant working for a pastoral company and she was required to re-locate to Brisbane and that would occur in approximately six weeks' time. As a result his wife and his children would be re-locating.

15 In relation to the accident Mr Eagles said that when he was told about the accident he felt "extreme guilt." That guilt forced him to become withdrawn from his wife and family and he began to have problems. Those problems became worse when they also experienced financial hardship arising from the fact that he had no desire to go to work and that made it hard for his wife to cope. His wife tried hard to keep him focused and help him through the situation and he expressed his gratitude for that assistance. At that time he only worked odd jobs around the place and it was many months before he began his current employment. Because of his wife' assistance during this difficult period and the assistance of his children he was "where I am today." He said he was working harder to regain his enthusiasm and had taught himself, with the assistance of colleagues at his current worksite, how to be more aware of not only the importance of workplace safety but also how to efficiently and effectively prevent and minimise occupational hazards and risks by taking appropriate precautions and installing the appropriate policies and documentation to monitor workplace standards for potential incidents. He said his involvement in this accident was not deliberate or intentional and he did not consider that something might go wrong. He had learned his lesson from the accident and had educated himself to ensure that it would not happen again. He emphasised that the past few years had been hard on his family because of his mistakes. Mr Eagles was not required for cross-examination.

16 Initially, no evidence was called on behalf of Lenora and Mr Durheim. There was one issue that was pursued by the defendants with some vigour and that related to the date upon which Mr Alexander had removed the ledger from the scaffolding, namely, whether it was the day before the accident or approximately one week before the accident involving Mr Day. In relation to this issue a statement of Inspector Dall and an extract from his notebook was tendered in evidence, together with a letter from Mr Alexander and a statement of Senior Constable Lawson following an interview with Mr Alexander. Inspector Dall was cross-examined at length regarding this matter as was Mr Alexander who was called to give evidence by the prosecutor.

17 Although both Inspector Dall and particularly Mr Alexander were closely tested in relation to this issue, the Court accepts Mr Alexander's evidence that he removed the ledger on approximately 9 or 10 March 2009 and had not removed the ledger the day before the accident, namely, around 16 March 2009. The Court, in particular, accepts Mr Alexander's explanation of why he had told Senior Constable Lawson that he had removed the ledger only the day before the accident as he was concerned that, if he admitted to having left the ledger unreplaced for approximately one week, his laxity would be considered as exacerbating his negligent conduct. During the time that the ledger remained unreplaced on the scaffolding no other tradesmen used the scaffolding although Mr Alexander was aware that, in due course, it would be used by other trades.

18 The evidence and argument was all but concluded in the May 2012 hearing when counsel for Mr Durheim and Lenara became aware of the fact that there were differences in the Agreed Statement of Facts relating to his clients and the Agreed Statement of Facts relating to Mr Eagles. Counsel had proceeded on the understanding that all the agreed facts were common to all three matters. Agreement had only recently been reached on the Statement of Facts and he had not seen the Agreed Statement of Facts in Mr Eagles' matter. The parties were offered a short adjournment to discuss this matter and upon resumption counsel for Mr Durheim and Lenara indicated that there were a relatively small number of matters that were required to be added to the Agreed Statement of Facts in those cases. Counsel had prepared a handwritten summary of the alternations that might be made but it was initially unclear whether all of these alterations would be acceptable to the prosecutor although many of them appeared to be matters of emphasis only.

19 In this rather messy state, the Court concluded that it was more appropriate to adjourn the proceedings and reserve judgment in the matters while permitting the prosecutor and counsel for the defendants to discuss variations to the Agreed Statement of Facts. If agreement could be reached the Court would accept the new Statement of Agreed Facts in substitution for the document tendered at the hearing but if there was any disagreement, the matter was to be relisted and the Court would then determine any contested facts. It was clearly in the contemplation of the Court at that time that this task would be attended to over the following few days and then the Court would either be provided with a new document encapsulating the facts now agreed or that, in addition, there might be some argument as to facts not agreed and the Court would set a date for hearing argument on those matters.

20 The parties, however, were not in a position to have the matter relisted until late November 2012, six months after the sentencing hearing where the matter was all but concluded. A delay of that length is entirely unacceptable. Attempts by the Court in the intervening period to ascertain the position of the parties and whether a final document was available were routinely met with vague assertions on behalf of the defendants that discussions were continuing. On the relisting of the matter the parties were able to produce an amended Agreed Statement of Facts but none of the amendments identified to the Court could be categorised as being of such significance as to warrant the six-month adjournment that ultimately occurred.

21 At the November 2012 hearing, counsel for Mr Durheim and Lenara also announced that leave was sought to adduce evidence for the first time in relation to his clients. In answer to a question from the Court, counsel for the defendants stated that it could not be asserted that the substance of this material was unavailable at the time of the May 2012 hearing but there were some recent developments in relation to monies owed to the defendants that had been clarified since the first hearing. The effect of re-opening of the case by these defendants was not opposed by the prosecutor and in the interests of the defendants the Court granted leave for new evidence to be adduced, albeit reluctantly, having regard to the full opportunity available to counsel to place this material before the Court in the May 2012 hearing. On receiving the affidavit it became evident for the first time that evidence was to be put before the Court concerning the remorse and contrition of the defendants having regard to the requirements of the Crimes (Sentencing Procedure) Act 1999. Remorse can only be taken into account by the Court if the offender has provided evidence of acceptance and responsibility for his or her actions and has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage. Clearly, this was evidence that should have been called at the initial hearing.

22 Mr Durheim's affidavit expressed, firstly, his personal and family sorrow and distress at the injuries received by Mr Day. Mr Day was described as "a great mate", working as a leading hand for the defendant company. Mr Day remained a very close, personal friend. When Mr Day was injured the entire family were deeply concerned for his condition and recovery and the well being of his family. Approximately six months after Mr Day received his injuries, Mr Durheim was informed that workers compensation payments would be stopped. Despite this, payments were maintained at the level of full wages for a further two years. As a result of Mr Day's injuries the workers compensation annual premium increased from $120,000 to $260,000. Mr Durheim said that they had struggled to pay this sum but from December 2010 the premium was reduced by $60,000 per year but remained at the level of approximately $200,000 per year.

23 In relation to the company's position in the building industry, Mr Durheim said that expenses were largely accounting for earnings. He noted that building companies were regularly failing with the consequence that payment was not received resulting in little or no chance of recovery. He had followed up money owing to the company with little success and stated that the business of the defendant was at a risk of closing as a consequence. He listed debts still outstanding where he had concluded there was little or no chance of recovery. Those debts totalled in excess of $260,000 owed to Lenara and approximately $154,000 owed to Premier. In addition, in order to meet staff entitlements for annual holiday pay covering the 2011-2012 Christmas period, Mr Durheim had personally put $70,000 into Lenara, an amount he obtained by drawing against his home loan. He said he had not yet recovered that money and was uncertain whether he would be able to do so.

24 Annexed to the affidavit were annual accounts prepared for Lenara, Premier and D & H Unit Trust. It was clarified by counsel for the defendants that, in effect, these accounts represented the various businesses run by Lenara although the Lenara company had ceased to trade. While there were some gaps in the documents, broadly, they could be described as showing significant turnover in the periods covered and a decline in the current profitability of the company. Although Mr Durheim was not cross-examined on these accounts, the Court was left with the impression that, even though the business had clearly enjoyed better financial times, there were still significant assets available to satisfy any penalty that might reasonably be expected to flow from these proceedings and the guilty pleas entered. Indeed, counsel for the defendants confirmed that some of the Lenara businesses were in better financial shape but that any fine imposed by the Court would be likely to be covered by borrowings.

25 The reliance on these financial documents raises a more general question. The Court has frequently stated that, in order to invoke the provisions of the Fines Act 1996, there needs to be a level of cogent evidence of the financial position of the defendant having regard to the particular circumstances of each defendant. Where there is a company of significant size and resources the Court is entitled to expect a frank analysis of the company's assets as well as the current financial performance. That evidence should normally be placed before the Court by the person responsible for compiling the company records or a person with similar qualifications. It is not uncommon to find where such records are tendered through a defendant that person has little or no understanding of the accounting records and is unable to assist the Court as to what they say about the state of the financial affairs of either the defendant company or the personal affairs of a defendant. It is also unfortunately the case that, frequently, the prosecutor does not cross-examine in relation to these financial documents although sometimes that occurs because the documents have been received at a late stage of the proceedings: however, in those circumstances there would be no reason why a short adjournment should not be obtained in order to scrutinise the financial position being presented to the Court. There is no doubt that the Court would be much assisted by the prosecutor presenting its own financial expert to speak to their own analysis of the records relied upon by defendants as to their financial position. It might also assist such an analysis if, at the time of setting the matter down for hearing, a timetable was adopted, especially for the filing of any material dealing with the financial position of the defendants.

26 Following the accident, the defendants retained a consultant to prepare new occupational health and safety documentation and the approach in that documentation had been implemented. Mr Durheim said that previously the defendants had placed faith in the reliability of a head contractor and normally the defendants would be called on to the site at short notice to commence work. Mr Durheim had accepted the involvement of a qualified and well known scaffolder who had approved of their scaffolding and knew what they were doing, He had not detected the removal of the ledger bar and that came as a "complete surprise" to him. He had not seen any bar removed while on site and only became aware of its removal by Mr Alexander when he admitted doing so after the accident. He regarded Lenara personnel at the site as experienced, including the leading hand, Mr Day. The occurrence at this site was outside Mr Durheim's experience and came as a terrible shock to him.

27 Mr Durheim said that he had not experienced other injuries and this occurrence had taught him what could go wrong and represented a valuable insight into the improvements needed in the defendant's systems. He had never heard of having to examine each part of a scaffold provided by a licensed scaffolder when the scaffolding appeared to be wholly and properly functional. In his view the scaffolding had been left in this state in effect as a "trap" for the unwary. In relation to toolbox meetings, Mr Durheim said that there were informal talks and they reflected the experience of the workers. The WorkCover website had noted that such talks might be appropriate, even if informal. The incident, nevertheless, taught him that, irrespective of whether toolbox meetings played any role, that in this instance, there was always room for improvement. Having made those statements he reiterated that he "was terribly sorry" for what had occurred and that he carried a "heavy burden" in coping with the fact that Mr Day had been injured. He unreservedly apologised for the extent to which he and Lenara and all other entities involved on the site had failed to meet their obligations. He understood the good sense of those requirements.

DELIBERATION

28 There were no submissions contesting the fact that Mr Day received very extensive injuries in what was a serious breach of the provisions of the Act. Mr Day fell 4.6 metres on to a concrete floor in circumstances where the scaffolding had firstly been modified by Mr Power and a labourer rather than by the qualified supplier, Wigging Scaffolding. Mr Alexander then made his own adjustments to the scaffolding without informing Mr Power or anyone else and then over a considerable period had failed to replace the ledger. These actions took place despite the C & E site-specific induction requiring that no modifications were to be made to scaffolding over four metres by unqualified persons and that the scaffolding was to be inspected on a weekly basis. Nevertheless, C & E had no documented system for scaffolding and inspection, did not have an audit prior to the accident and none of its employees were appropriately trained to modify or erect scaffolding. It was Mr Power, for C & E, who had the task of undertaking the audit of the scaffolding on a weekly basis but he did not have any scaffolding qualifications. Mr Power was not provided with any training by C & E to enable him to undertake this task and to ensure that, by weekly inspections, the scaffolding met all safety requirements. From 12 March 2009 until the date of the accident Mr Power was on leave and no one else from C & E conducted the required inspection. Mr Eagles took over the site supervision but did not know of the changes made to the scaffolding by Mr Power or Mr Alexander.

29 The prosecutor submitted that there was a foreseeable risk of a person falling from the work platform in circumstances where the work was to be performed at heights. There was a lack of proper access to the scaffolding and also a lack of toe rails, handrails or mid-rails on the work platform. Those matters were identifiable risks and should have been addressed by C & E and their representatives, including Mr Eagles. While the Court accepts that submission, it appears that the same conclusion can be drawn in relation to Lenara and Mr Durheim. Their safety systems and procedures required an assessment of the work to be undertaken but they appear to have merely relied upon C & E in relation to the safety of the scaffolding. Indeed, after the incident Lenara's employees returned to the site but Mr Durheim did not undertake any inspection to ensure that the deficiencies relating to the scaffolding had been rectified, again, relying upon C & E to ensure that safe rectification of the scaffolding had taken place. The lack of toe rails, handrails and mid-rails should have been obvious to those engaged in using scaffolding in their everyday business.

30 C & E's safety system also fell down in that Mr Day and the other painters were not formally inducted when they commenced work on 17 March 2009 nor did C & E obtain Lenara's safe work method statement prior to their employees commencing work. In addition, C & E failed to conduct toolbox talks with its sub-contractors, including Mr Day, prior to the accident. There was little or no supervision of the sub-contractors by C & E. It was accepted by Mr Eagles that he played a major role in developing and implementing C & E's safety policies and procedures at the project and at all times had the authority to compel compliance with those safety procedures, including the supervision of work being performed by C & E and sub-contractors. Having regard to the comprehensive nature of the particulars of the breach accepted by Mr Eagles in entering his plea of guilty, his offence is aptly described as one involving a serious breach of the Act.

31 In relation to Lenara and Mr Durheim, Mr Durheim was a director of the company (and Premier) and had instructed Mr Day, Mr Dowd and Mr Walker to attend the site. Nobody from Lenara, including Mr Durheim, conducted a prior risk assessment of the work that was to be undertaken by their employees or any inspection of the scaffolding to establish its suitability for the work to be performed by those employees. There was no request made of C & E as to whether that company had completed an appropriate risk assessment of the scaffolding and had addressed the risk of falling from heights. When the three employees attended the site under C & E's safety plan all contractors were to sign the site-specific induction. Mr Eagles conducted a very basic verbal induction covering the location of toilets, eating facilities and discussing generally the painting task to be undertaken on that day. Mr Durheim arrived at the site just after morning tea and spoke with Mr Day concerning the work to be performed but none of the employees nor Mr Durheim noticed that one of the ledger bars had been removed from the scaffolding.

32 Mr Durheim accepted that Lenara had not provided to C & E a safe work method statement for the work to be undertaken prior to the incident although C & E did have a copy of Lenara's "generic" work safety document. It is of significance that Lenara's own safety management system was not complied with by failing to undertake a site-specific safety induction for its employees or to ensure that C & E conducted such an induction prior to the commencement of work. There was no instruction or information given to Mr Day concerning his responsibilities as a leading hand. The workers on the site had not been consulted concerning procedures and measures that might be taken to eliminate or control risks that appeared at the site and in particular were not consulted concerning the risks of working at heights and the measures that might be taken to eliminate or control those risks. As with C & E, the charge to which Lenara and Mr Durheim have entered a plea of guilty can properly be described as comprehensive in detailing the failures of the defendants and the offences committed by these defendants also represents a serious breach of the Act.

33 In relation to deterrents, general deterrence will play a significant role in the setting of a final penalty in each case. All these cases present a familiar situation - companies prepare in considerable detail safety systems but the method of enforcing those systems fails, often with very serious consequences for persons employed at the workplace. Similarly, a fall from height is an all too common occurrence, especially in the construction industry. The simple step of conducting the inspection of the scaffolding proposed and required by C & E's safety system should have prevented this serious accident and its consequences for Mr Day: as would compliance with the requirement that only licensed persons should modify the scaffolding. In relation to specific deterrence, the Court accepts the submissions for the prosecutor that in light of the fact that Mr Eagles is no longer working for C & E, a company in liquidation, and is no longer working in the construction industry, specific deterrence has a limited role in the setting of an appropriate penalty. The same approach is not available in relation to Lenara and Mr Durheim: specific deterrence will therefore form a significant element of the penalty in each case.

34 In relation to all defendants the evidence was that they had no relevant prior convictions. Although there was no material before the Court as to the size of the operation of the corporate defendant and C & E or the circumstances of their work that might shed light upon the significance of their prior safety record, nevertheless, all defendants are entitled to the leniency available to a first offender. Similarly, in relation to Mr Eagles, there was no evidence as to the nature of his work history. He was not a director of C & E but he played a major role in developing and implementing C & E's safety procedures and policies, including those applied to this project. He had authority to compel compliance with the company's safety policies and had authority to enter into contracts on behalf of C & E. The prosecutor accepted that, although there had been a number of mentions prior to pleas being entered, there were issues before the Court of Appeal, especially in relation to the role of corporations, that made it appropriate for the pleas to be delayed until the law was clarified. The Court accepts that when those clarifications were known, shortly thereafter pleas of guilty were entered. These are all, therefore, considered to be appropriate cases for the application of a 25 per cent discount on the final penalty.

35 In relation to personal circumstances evidence was given by Mr Eagles. The Court accepts his evidence as an indication of his remorse and contrition and establishing the fact that he has taken responsibility for his part in this serious workplace accident. There was some evidence of steps taken after the accident to address the gaps in the safety system used by C & E. In addition, it is apparent that he is facing a continuing stressful period arising from the breakdown of his marriage. He provided only limited evidence of his financial situation and it appears that his circumstances might best be met by an application to the Registrar for permission to pay by instalments the fine that the Court shall impose.

36 As indicated earlier, the Court now has some evidence from Mr Durheim and Lenara as to their circumstances. Although some aspects of Mr Durheim's affidavit might suggest that he has not yet accepted full responsibility for the defendant's level of participation at the workplace in not addressing the risks particularised, considered overall, his evidence demonstrates remorse and contrition that goes beyond merely entering a guilty plea. In particular, the evidence shows the steps taken by the defendants to continue their financial support for Mr Day long after the occurrence of the accident and after workers compensation payments were no longer made by the insurer. Although no detail was provided it appears that steps were taken by the defendants following the accident to review and improve their safety systems and to address the type of risks that were exposed by this accident. As earlier indicated, the financial evidence placed before the Court at the resumed hearing does not establish an incapacity to pay a level of fine that might reasonably be imposed having regard to the nature of these offences but those documents do establish, together with Mr Durheim's evidence, the fact that the corporate defendant is currently encountering some financial difficulties. That situation, as with Mr Eagles, may be appropriately addressed by an application to the Registrar or to WorkCover to allow the fine imposed by the Court to be paid by appropriate instalments.

37 During the time that these matters were reserved the prosecution discontinued the proceedings against C & E Structures Pty Ltd. The Court was informed that, at the date of hearing of these proceedings, C & E Structures Pty Ltd had been placed in liquidation.

ORDERS

38 Having regard to the abovementioned matters, the Court makes the following orders:

A in relation to Glen Robert Eagles:

(i) the defendant, Glen Robert Eagles, is found guilty of a breach of s 8 (2) of the Occupational Health and Safety Act 2000 by operation of s 26(1) of that Act as particularised in Matter IRC 253 of 2011 to which the defendant entered a plea of guilty;

(ii) the defendant is fined the sum of $9500 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 a sum as agreed or, in the absence of agreement, as ordered by the Court.

B in relation to Lenara Pty Ltd:

(i) the defendant, Lenara Pty Ltd, is found guilty of a breach of

s 8(1) of the Occupational Health and Safety Act 2000 as particularised in Matter IRC 256 of 2011 to which the defendant entered a plea of guilty;

(ii) the defendant is fined the sum of $95,000 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 a sum as agreed or, in the absence of agreement, as ordered by the Court.

C in relation to Anthony James Durheim:

(i) the defendant, Anthony James Durheim, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 by operation of s 26(1) of that Act as particularised in Matter IRC 255 of 2011 to which the defendant entered a plea of guilty;

(ii) the defendant is fined the sum of $9500 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 a sum as agreed or, in the absence of agreement, as ordered by the Court.

ANNEXURE A

AGREED STATEMENT OF FACTS

GLEN ROBERT EAGLES

1. At all material times, the prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("Act") and empowered under Section 106 of the said Act to institute proceedings in the within matter.

2. At all material times C & E Structures Pty Limited (ACN 120 843 772) was a corporation whose registered office is situated at 4-10 North Creek Road, Ballina in the state of New South Wales ("C&E").

3. At all material times Glen Robert Eagles ("Mr Eagles") was employed by C&E as a Construction Manager and was a person concerned in the management of C&E.

4. At all material times C&E was a corporation which conducted a business, trade or undertaking in the construction of residential or commercial premises and in construction and project management.

5. At all material times C&E entered into a Construction Management contract with Bangalow Creek Company Pty Ltd ("Bangalow") for the provision of construction management services in relation to the construction of a food manufacturing factory at 14B Banksia Drive, Byron Bay, New South Wales, 2481 ("the premises").

6. The description of works to be performed by C&E contained in that contract were:

Manage coordinate & supervise construction of the Brookfarm factory, Byron Bay as documented on the plans & specifications and as directed.

("the Brook Farm factory project")

7. At all material times Bangalow provided all funding required for the purposes of the construction of a food manufacturing factory situated at the premises.

8. The factory was to be used by Brook Farm Pty Ltd ("Brook Farm"), which is an associated company of Bangalow.

9. At all material times the premises were owned by Pam and Martin Brook who are both directors of Brook Farm and Bangalow.

10. Mr Eagles was the C& E Construction Manager for the Brook Farm factory project.

11. John Power ("Mr Power") was employed by C&E and was the Site Supervisor for the Brook Farm factory project.

12. Mr Eagles described C&E's undertaking at the premises in relation to the Brook Farm factory project as including obtaining trade contractors and administering and maintaining a budget and the general works associated with the construction.

13. C & E, as Construction Manager for and on behalf of Bangalow, engaged a number of subcontractors to undertake various works in relation to the construction of the factory. Those subcontractors, including Lenara, were to be advised by C & E when they were to commence to undertake their respective work on site.

14. In the course of its undertaking as Construction Manager, C&E arranged for the property to be painted and the sealing of gyprock to be undertaken.

15. At all material times Lenara Pty Ltd ('Lenara') was a corporation which carried on business in the State of New South Wales, performing painting and decorating services including the sealing of gyprock.

16. At all material times the C & E, in its Construction Management role, entered into a Sub-contract agreement (as agent for Bangalow), with Lenara dated 13 March 2009, to paint the office and amenities of the factory at the premises.

17. Lenara commenced to undertake work on 17 March 2009 in relation to its undertaking of painting and decorating services on the Brook Farm factory project pursuant to its Sub-contract agreement with C & E.

18. At all material times Lenara supplied labour and equipment to paint and seal the gyprock at the office and amenities of the factory at the premises.

19. At all material times C&E, in its Construction Management role, entered into a Sub-contract agreement (as agent for Bangalow) with Wiggins Scaffoldings Pty Limited ("Wiggins") to supply and erect scaffolding at the premises. Wiggins was a licensed scaffolder.

20. At all material times C&E, in its Construction Management role, entered into a Sub-contract agreement (as agent for Bangalow) with Levi Alexander, a self-employed plasterer trading as Alexander Plastering, to perform plastering and gyprock setting services at the premises. Mr Alexander was duly inducted to work on the site and was an experienced plasterer who had previously worked with scaffolding.

21. Each of the above Sub-contract agreements was signed by Mr Eagles in his capacity as the Construction Manager, for C&E as agent for Bangalow.

22. At all material times Anthony Durheim ("Mr Durheim") was a director of Lenara and Premier 3D Painting Pty Ltd ("Premier 3D").

23. At all material times Lenara was an employer and employed Robert Thomas Day ("Mr Day") as a leading hand painter and Jesse Dowd ("Mr Dowd") as a painter.

24. At all material times Premier 3D employed Mr Walker as a painter.

25. At the time of the incident, Lenara was undertaking painting and decorating services for the Brook Farm factory project being undertaken by C&E at the Premises.

Background to circumstances of the Incident

26. On or about 2 March 2009, Wiggins undertook scaffolding works at the Premises.

27. This work included the erection of scaffolding in the internal structure of the factory for the purposes of setting gyprock and painting the internal wall of the offices and other internal rooms of the factory.

28. In particular, scaffolding was required to be erected in a void in the south eastern corner of the office/reception area in what is referred to as the meeting room. An internal staircase provided access to a landing, which in turn provided access to level one of the factory building.

29. The landing measured approximately 2.3m (L) x 1.030m (W) and was fitted with a steel handrail on both sides. The staircase was constructed of steel stringers with 17 timber treads.

30. Wiggins erected in the south-east corner of the building a tube and coupler modular steel scaffold, known as Qwikstage.

31. The scaffolding was constructed in the stairwell over the staircase and in a void beside the staircase.

32. The scaffold measured approximately 1.8 metres x 1.8 metres by 4.6 metres to the work platform. The scaffolding was square in configuration comprised of four standards, one in each corner fitted with wind up base plates. Ledges were fitted on all sides at the bottom and intermediate levels. The scaffold was on solid base plates or screw jacks.

33. Three employees of Wiggins erected the scaffold. They were Mitchell Parmenter, Adrian Rand and Ryan Hamilton.

34. A scaffold tag was attached on completion of the erection of the scaffold.

35. Levi Alexander (self employed plaster) stated that the scaffold was set up in the void area to allow for work to be undertaken on the ceiling. However, Mr Alexander needed access to a wall area around a window which was located in the wall of the stairwell immediately below the level of the scaffold work deck to complete the plastering in that area.

36. On or about 10 March 2009, Mr Alexander stated that he asked Mr Power to arrange for the modification of the scaffold in that area. Mr Alexander stated that Mr Power and a labourer adjusted the scaffold in that area to drop it down to allow him to get in and finish plastering in that section.

37. However, despite the modification to the scaffold in that area Mr Alexander was still not able to properly access that area to complete the plastering work. Mr Alexander removed a ledger from the area of the scaffold adjacent to the stairwell in order to provide himself with access to that area,

38. Mr Alexander did not inform Mr Power or anyone from C&E that he had removed the ledger from the scaffold.

39. After he had completed the plastering task that he had been undertaking, Mr Alexander failed to replace the ledger that he had removed from the scaffolding. Mr Alexander did not inform Mr Power or any one from C&E that he had removed and not replaced the ledger from the scaffold. Nor did he inform any one else of this prior to or subsequent to the Incident.

40. C&E had a document titled 'Site Specific Induction' that was used for the Brookfarm Factory project. This document has a section that dealt with scaffolding. This stated that no modifications were to be made to scaffolding over 4 metres by unqualified persons. It also required 'Scaffolding inspections to be carried out on a weekly basis.'

41. C & E did not have a documented system for scaffold inspection and audit at the premises prior to the incident. C&E did not have any employees who were suitably trained to modify or erect scaffold. C&E relied upon the scaffold tag affixed by Wiggins to the scaffold as indicating that the scaffolding was compliant and safe for use.

42. Mr Power, on behalf of the C & E, had been delegated the task and responsibility of undertaking the audit of the scaffolding on the premises on a weekly basis.

43. Mr Power had no scaffolding qualifications. C & E did not provide Mr Powers with any training to enable him to ensure that he was able to undertake the task and responsibility of inspecting the scaffold on a weekly basis to ensure it complied with legislative requirements.

44. Mr Power was on annual leave from 12 March 2009 to 18 March 2009. No scaffold inspections were performed by C & E during that period.

45. On and from Monday, 16 March 2009, Mr Eagles took over the site supervisor duties at the premises that were previously being undertaken by Mr Power,

46. Mr Eagles did not undertake a scaffold inspection. However, the scaffolding continued to have a scaffold tag affixed. Mr Eagles had no knowledge of the changes made to the scaffold by Mr Power and Mr Alexander.

47. Mr Durheim, Director of Lenara instructed Lenara's leading hand, Mr Day and Mr Dowd and Mr Walker to attend the premises on 17 March 2009 to undertake gyprock sealing and painting works for the Brook Farm factory project.

48. Prior to directing the painters to attend the premises to carry out the work on 17 March 2009, neither Mr Durheim nor anyone else on behalf of Lenara had conducted a risk assessment of the work to be undertaken or undertaken any inspection of the scaffolding system to determine whether it was adequate to prevent the risks of falls from heights.

49. Nor had Lenara requested any specific information from C&E as to whether it had completed a risk assessment of the scaffolding to ensure that it was adequate to prevent the risk of falls from heights.

50. On 17 March 2009, Mr Day, Mr Dowd and Mr Walker arrived on site at approximately 8:00 am. This was there first day on the premises for all three men.

51. Pursuant to C&E's OHSE plan, all contractors were to sign a "site specific induction" form stating they understood and would comply with all the safety items listed on the form when working on the premises.

52. On 17 March 2009, when they arrived at the premises Mr Day, Mr Dowd and Mr Walker went to the site office prior to commencing work. There was no-one at the office when they arrived and Mr Day asked an unidentified person at the premises "who was in charge?" The unidentified person was Mr Eagles who told Mr Day that they were to paint the area in the factory where a roller door was to be fitted and what colour to paint the office area where the incident occurred.

53. Mr Eagles stated that he then "verbally" inducted them to the premises. The 'induction' undertaken by Mr Eagles involved Mr Eagles showing Mr Day, Mr Dowd and Mr Walker the general location of the toilets, eating facilities and discussing the specific work task that was to be performed by them on the day.

54. There was no other more formal induction or induction in accordance with the site specific induction form.

55. Mr Day, Mr Dowd and Mr Walker then commenced painting work around the roller door area. They had morning tea at 9 am and were finished morning tea at about 9:30am. Mr. Durheim arrived on site just after they had finished morning tea. Mr. Durheim spoke with Mr Day about the job for about 15 minutes and then left.

56. Mr Durheim, Mr Day, Mr Dowd and Mr Walker did not notice that one of the ledger bars had been removed from the scaffold. .

57. Mr. Durheim stated that Lenara did not provide a SWMS for the work to be undertaken at the site to C&E prior to the incident. Mr Durheim states C & E did have a copy of Lenara's "generic" work safety document.

Circumstances of the Incident

58. On the morning of 17 March 2009, after painting around the area where the roller door was to be installed, Mr Day was required to undertake the task of sealing the gyprock walls in the southeast corner of the office/reception area in what is referred to as the meeting room.

59. In order to undertake the task of the sealing of the gyprock walls on the internal structure, Mr Day was required to climb up over the handrail to access the work platform at the top of the scaffolding over the void.

60. On the day of the incident there was no dedicated safe access to the working platform on the scaffold. Mr Day was required to climb up over the stairwell hand rails to access the work platform.

61. At the time of the incident Mr Day was working along side Mr Dowd on the work platform. Mr Walker was working around the corner on the landing approximately 1.8 metres away.

62. At approximately 9:45 am on 17 March 2009, as Mr Day was working on the scaffold work platform preparing to roll the wall in front of him, a work deck plank that he was standing on dislodged from the scaffold work deck causing him to fall from the work deck approximately 4.6 m to the concrete floor below.

63. The steel plank became dislodged from the scaffold deck due to a ledger being missing from its correct position on the northern side of the scaffolding closest to the wall on which Mr Day was working. This ledger would ordinarily have assisted with keeping the steel plank in its position in the work deck. The missing ledger was the one that Mr Alexander had removed.

64. The scaffold that Mr Day was working from was the scaffold that had been altered on or about 10 March 2009, by Mr Alexander. The ledger that Mr Alexander had removed from the scaffold to allow access to a window was from the scaffold on which Mr Day was working at the time of the incident.

65. Mr Eagles was not present on the premises at the time of the incident he left the premises shortly after providing the 'verbal' induction to Lenara employee's.

66. Anthony Durheim was not present on the premises at the time of the incident, having left the premises a short time before.

67. Mr Day was transported by ambulance to Tweed Heads Hospital for assessment and treatment.

68. Mr Day sustained a fractured pelvis, five fractured ribs, punctured lung, fractured left shoulder, a fractured left arm, fractured disc middle lower back and multiple fractured fingers.

69. As at February 2010, Mr Day had not return to pre-injury duties, however Lenara and Mr Durheim provided him some selected duties driving a truck delivering paint a couple of hours every Tuesday.

The systems of work prior to the incident

C&E

70. C&E had a document entitled 'C & E Structures Pty Ltd, Brook Farm Factory, OHSE Management Plan' dated variously May and September 2009 ("OHSE Plan").

71. The OHSE plan included a section on 'Hazard Categories' (003) and rates the hazards from "Heights and Falls' as H2. According to its risk matrix (006) this was designated as being of high level of harm but unlikely to occur. The OHSE Plan identified the risks relating to a potential fall from height.

72. The OHSE Plan included a section entitled 'Workplace inspection checklist' (014). This checklist includes a section relating to 'Height work' and includes sections including 'perimeter protection', 'handrails in place', 'penetrations covered', 'fall restraint/arrest system in use', 'SWMS followed'. The OHSE Plan identified the risks relating to a potential fall whilst working at height.

73. C&E also had a document entitled, 'C & E Structures, Construction & Project Management, Site Specific Induction' ("Induction Plan").

74. The Induction Plan had sections dealing with 'Work at Height' and 'Scaffolding'. The section dealing with 'Work at Height' includes a requirement that work only be undertaken at heights where there is a safe working platform.

75. The Induction Plan had a section dealing with 'Scaffolding' which included a requirement that 'scaffolding inspections to be carried out on a weekly basis.'

76. Pursuant to C&E's OHSE plan, all trade sub-contractors were to sign a "site specific induction" form stating they understood and would comply with all the safety items listed on the form when working on the premises. Mr Alexander was provided with a copy of the site specific induction form by Mr Powers when he commenced working on the site. He read through the form and agreed to comply with its content.

77. Mr Day and the other painters were not formally inducted to the premises prior to commencing work on 17 March 2009.

78. C&E did not obtain from Lenara a Safe Work Method Statement (SWMS), prior to Lenara's employees commencing work at the premises.

79. C&E failed to conduct toolbox talks prior to the incident with its sub-contractors, including Mr Day.

80. In relation to the work being undertaken by Lenara's employees on 17 March 2009, there was little or no supervision from C&E in place when they first attended at the premises or subsequently while they were undertaking their tasks.

Directors and persons concerned in the management of C&E

81. Michael Hodgkinson ("Mr Hodgkinson") was the sole director of C&E. Mr Hodgkinson's role was to estimate building jobs and to manage building jobs in an office capacity rather than on the premises. He had no direct role in relation to the work being performed at the premises.

82. Mr Hodgkinson stated that he and Mr Eagles had the responsibility for developing and implementing the company's occupational health and safety policies and procedures.

83. Mr Eagles was not a director of C&E at the date of the incident. Mr Eagles was a person concerned in the management of C&E. He performed the role of Construction Manager. He had authority to enter into contracts on behalf of C&E in relation to its business, and in particular in relation to the Brook Farm Factory project.

84. Mr Eagles also played a major role in developing and implementing C&E's occupational health and safety policies and procedures, including in relation to the Brook Farm Factory project.

85. At all material times Mr Eagles had the authority to compel compliance with health and safety in relation to the management, coordination and supervision work being performed by C&E and subcontractors engaged and their workers at the Brook Farm factory Project at the premises.

Lenara Pty Ltd

86. Lenara had an Occupational Health Safety and Injury Management System (OHS & IMS) document in place for work at the premises. This document had not been signed at the date of the Incident. The documents were prepared by an outside organisation on behalf of Lenara.

87. The Lenara OHS & IMS document is supported by procedures and forms that Lenara had expected to use to manage the health safety and welfare of their employee.

88. Lenara's OHS & IM document states "where applicable, employees will attend a site specific safety induction before commencing work on each project. The site induction will be conducted by a Principal Builder representative. The site induction undertaken to ensure that the workers understand their requirements of the project in regards to Occupational Health and Safety".

89. Lenara did not provide site specific induction training to its employees prior to their commencing work on the premises and did not comply with its own OHS & IM document.

90. Pursuant to the Lenara OHS & IM document Lenara's employees were required to attend a site specific induction before commencing work on each project. The site induction is to be undertaken to ensure that the worker understands requirements of the project in regard to occupational health and safety.

91. Consequently, Lenara employees were not informed of the need to undertake hazard identification and risk assessment prior to commencing work, regarding the risks associated with working at heights. No instruction or information was given to Mr Day in relation to his responsibilities as a leading hand.

92. Lenara's OHS & IM document mandated task specific training (risk assessment training) must be provided to all employees, and documented to ensure that they understand the safe system of work prior to commencing work.

93. Lenara did not provide task-specific training to its employees and did not comply with its own OHS & IM document.

94. Lenara did not undertake a risk assessment for working at heights at the premises. Lenara did not undertake an inspection of the scaffold to ensure that components such as the ledger were properly in place. In addition Lenara did not have safe access from the scaffold.

95. Lenara did not follow its own OHS & IM document in that it did not have in place a Safe Work Method Statement for working at heights. The OHS & IM document requires that Safe Work Method Statements will include the following:

(i) Description of how work is to be carried out.

(ii) Identification of the work activities assessed as having safety risk and the control measures that will be applied to work activities.

(iii)

(iv) Description of the control measures that will be applied to work activities.

96. Lenara did not undertake a risk assessment for working at heights at the premises.

97. Lenara did not undertake an inspection of the scaffold to ensure that components such as the ledges were properly in place.

98. Mr Day and Mr Dowd were not consulted with regard to risks of working at heights and measures to eliminate or control risks on the day of the incident. There were no tool box meetings upon induction.

99. Lenara did not have a Safe Work Method Statement for working at heights at the time of the incident. The Safe Work Method Statement dated 12 March 2009 was written after the incident and backdated by Mr Durheim.

100. Consultation arrangements on the premises were contrary to the consultation statement within Lenara's Occupational Health and Safety and Injury Management Plan.

101. Mr Day and others were not consulted with regard to procedures and measures to eliminate or control risks on the day of the incident.

102. There was no tool box meetings conducted which Mr Day, Mr Dowd or Mr Walker attended.

103. Mr Durheim did not attend the premises and inspect the works being undertaken.

The systems of work after the Incident

C&E

104. After the incident, C&E was issued with a prohibition notice by WorkCover in relation to the scaffolding in the void area at the premises. As a result C&E engaged Wiggins to undertake a significant modification of the scaffolding at the premises. This included the erection of handrails around the work platform over the stairwell and stairs to the work platform to provide safe access and egress.

105. After the incident, C&E conducted one tool box meeting on 19 March 2009 and completed a workplace inspection checklist on 19 March 2009. The project reached completion on 14 April 2009.

106. Prior to and after the incident, C&E kept induction training records. C&E also ensured that persons on the premises were wearing PPE.

Lenara

107. Mr Durheim relied upon the word of Mr Power, Site Supervisor employed by C&E, that the scaffolder had been notified to make the scaffolding safe for Lenara's employees to work from.

108. Subsequently, a Safe Work Method Statement was prepared by Lenara. Mr Durheim stated that the SWMS had been backdated to 12 March 2009.

109. Lenara's employees were required to return to the premises and continue to undertake painting duties after the Incident. However, they did not return until 20 March 2009.

110. However, prior to Lenara's workers re-commencing work at the Premises, Mr Durheim did not go back to the premises to ensure that there were safe systems of work in place for the defendant's employees and inspect the works being undertaken.

111. Lenara's Occupational Health and Safety and Injury Management System did not reflect any change after the Incident and has not been changed for a few years.

112. Mr Durheim agreed that more work was required on Lenara's system to ensure the health, safety and welfare of his employees whilst they are at work.

ANNEXURE B

AGREED STATEMENT OF FACTS

ANTHONY JAMES DURHEIM and LENARA PTY LTD

1. At all material times, the prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("Act") and empowered under Section 106 of the said Act to institute proceedings in the within matter.

2. At all material times Lenara Pty Limited (ACN 002 193 008) was a corporation whose registered office is situated at 53 Carrington Street, Lismore in the state of New South Wales ("the defendant").

3. At all material times the defendant was a corporation which conducted a business, trade or undertaking performing painting and decorating services including the sealing of gyprock.

4. At all material times Anthony Durheim ("Mr Durheim") was a director of Lenara Pty Ltd and Premier 3D Painting Pty Limited ("Premier 3D").

5. At all material times the defendant was an employer and employed Robert Thomas Day ("Mr Day") as a leading hand painter and Jesse Dowd ("Mr Dowd") as a painter.

6. At all material times Premier 3D was an employer and employed Mr Walker as a painter.

7. Premier 3D Painting was established by Mr Durheim and his father, Leonard Durheim.

8. At all material times C & E Structures Pty Limited ("C & E") was an employer and employed Glen Eagles ("Mr Eagles") as Construction Manager and John Power ("Mr Power") as a Site Supervisor.

9. At all material times the premises situated at 14B Banksia Drive, Byron Bay, New South Wales, 2481 ("the premises") were owned by Pam and Martin Brook. Pam and Martin Brook are both directors of Bangalow Creek Company Pty Ltd ("Bangalow").

10. At all material times Bangalow provided all funding required for the purposes of the construction of a food manufacturing factory at the premises.

11. The factory was to be used by Brook Farm Pty Ltd ("Brook Farm"), which is an associated company of Bangalow.

12. At all material times the premises were owned by Pam and Martin Brook who are both directors of Brook Farm and Bangalow.

13. At all material times the C & E entered into a Construction Management contract with Bangalow for the provision of construction management works in relation to the construction of a food manufacturing factory at the premises ("the Brook Farm factory project"). The description of works to be performed by C & E contained in that contract were:

Manage coordinate & supervise construction of the Brookfarm factory, Byron Bay as documented on the plans & specifications and as directed.

14. Mr Eagles was the C & E Construction Manager for the Brook Farm factory project.

15. Mr Eagles described the C & E's role as including obtaining trade contractors and administering and maintaining a budget and the general works associated with the construction. C & E was also to manage, co-ordinate and supervise construction of the Brookfarm factory, Byron Bay.

16. Mr Power was the Site Supervisor for the Brook Farm factory project.

17. C & E, under its contract with Bangalow, engaged a number of subcontractors to undertake various works in relation to the construction of the factory. Those subcontractors, including Lenara, were to be advised by C & E when they were to commence to undertake their respective work on site.

18. In the course of its undertaking in relation to the construction of the factory, C & E required the property to be painted and the sealing of gyprock to be undertaken.

19. At all material times the C & E, in its Construction Management role, entered into a Sub-contract agreement (as agent for Bangalow), with the defendant dated 13 March 2009, to paint the office and amenities of the factory at the premises.

20. Lenara supplied labour and equipment to paint and seal the gyprock at the office and amenities of the factory at the premises.

21. The defendant commenced to undertake work on 17 March 2009 in relation to its undertaking of painting and decorating services on the Brook Farm factory project pursuant to its Sub-contract agreement with C & E.

22. At all material times C&E, in its Construction Management role, entered into a Sub-contract agreement on behalf of Bangalow with Wiggins Scaffoldings Pty Limited ("Wiggins") to supply and erect scaffolding at the premises. Wiggins was a licensed scaffolder.

23. At all material times C&E, in its Construction Management role, entered into a Sub-contract agreement on behalf of Bangalow with Levi Alexander, a self-employed plasterer trading as Alexander Plastering, to perform plastering and gyprock setting services at the premises. Mr Alexander was duly inducted to work on the site and was an experienced plasterer who had previously worked with scaffolding.

24. Each of the above Sub-contract agreements was signed by Mr Eagles in his capacity as the Construction Manager, for C&E on behalf of the Bangalow.

Background to circumstances of the Incident

25. On or about 2 March 2009, Wiggins undertook scaffolding works at the Premises.

26. This work included the erection of scaffolding in the internal structure of the factory for the purposes of setting gyprock and painting the internal wall of the offices and other internal rooms of the factory.

27. In particular, scaffolding was required to be erected in the south eastern corner of the office/reception area in what is referred to as the meeting room. An internal staircase provided access to a landing, which in turn provided access to level one of the factory building.

28. The landing measured approximately 2.3m (L) x 1.030m (W) and was fitted with a steel handrail on both sides. The staircase was constructed of steel stringers with 17 timber treads.

29. Wiggins erected in the south-east corner of the building a tube and coupler modular steel scaffold, known as Qwikstage.

30. The scaffolding was constructed in the stairwell over the staircase and over a void beside the staircase.

31. The scaffold measured approximately 1.8 metres x 1.8 metres by 4.6 metres to the work platform. The scaffolding was square in configuration comprised of four standards, one in each corner fitted with wind up base plates. Ledgers were fitted on all sides at the bottom and intermediate levels. The scaffold was on solid base plates or screw jacks.

32. Three employees of Wiggins erected the scaffold. They were Mitchell Parmenter, Adrian Rand and Ryan Hamilton. All were scaffold labourers.

33. A scaffold tag was attached on completion of the erection of the scaffold.

34. Levi Alexander (self employed plaster) stated that the scaffold was set up in the void area to allow for work to be undertaken on the ceiling. However, Mr Alexander needed access to a wall area around a window which was located in the wall of the stairwell immediately below the level of the scaffold work deck to complete the plastering in that area.

35. On or about 10 March 2009, Mr Alexander stated that he asked Mr Power to arrange for the modification of the scaffold in that area. Mr Alexander stated that Mr Power and a labourer adjusted the scaffold in that area to drop it down to allow him to get in and finish plastering in that section.

36. However, despite the modification to the scaffold in that area Mr Alexander was still not able to properly access that area to complete the plastering work. Mr Alexander removed a ledger from the area of the scaffold adjacent to the stairwell in order to provide himself with access to that area.

37. Mr Alexander did not inform Mr Power or anyone from C&E that he had removed the ledger from the scaffold.

38. After he had completed the plastering task that he had been undertaking, Mr Alexander failed to replace the ledger that he had removed from the scaffolding. Mr Alexander did not inform Mr Power or any one from C&E that he had removed and not replaced the ledger from the scaffold. Nor did he inform any one else of this prior to or subsequent to the Incident.

39. C&E had a document titled 'Site Specific Induction' that was used for the Brookfarm Factory project. This document has a section that dealt with scaffolding. This stated that no modifications were to be made to scaffolding over 4 metres by unqualified persons. It also required 'Scaffolding inspections to be carried out on a weekly basis.'

40. C & E did not have a documented system for scaffold inspection and audit at the premises prior to the incident. C&E did not have any employees who were suitably trained to modify or erect scaffold. C&E relied upon the scaffold tag affixed by Wiggins to the scaffold as indicating that the scaffolding was compliant and safe for use.

41. Mr Power, on behalf of the C & E, had been delegated the task and responsibility of undertaking the audit of the scaffolding on the premises on a weekly basis.

42. Mr Power had no scaffolding qualifications. C & E did not provide Mr Powers with any training to enable him to ensure that he was able to undertake the task and responsibility of inspecting the scaffold on a weekly basis to ensure it complied with legislative requirements.

43. Mr Power was on annual leave from 12 March 2009 to 18 March 2009. No scaffold inspections were performed by C & E during that period.

44. On and from Monday, 16 March 2009, Mr Eagles took over the site supervisor duties at the premises that were previously being undertaken by Mr Power,

45. Mr Eagles did not undertake a scaffold inspection. However, the scaffolding continued to have a scaffold tag affixed.

46. Mr Durheim, Director of the defendant instructed Lenara's leading hand, Mr Day and Mr Dowd and Mr Walker to attend the premises on 17 March 2009 to undertake gyprock sealing and painting works for the Brook Farm factory project.

47. Prior to directing the painters to attend the premises to carry out the work on 17 March 2009, neither Mr Durheim nor anyone else on behalf of Lenara had conducted a risk assessment of the work to be undertaken or undertaken any inspection of the scaffolding system to determine whether it was adequate to prevent the risks of falls from heights.

48. Nor had Lenara requested any specific information from C&E as to whether it had completed a risk assessment of the scaffolding to ensure that it was adequate to prevent the risk of falls from heights.

49. On 17 March 2009, Mr Day, Mr Dowd and Mr Walker arrived on site at approximately 8:00 am. This was there first day on the premises for all three men.

50. Pursuant to C&E's OHSE plan, all contractors were to sign a "site specific induction" form stating they understood and would comply with all the safety items listed on the form when working on the premises.

51. On 17 March 2009, when they arrived at the premises Mr Day, Mr Dowd and Mr Walker went to the site office prior to commencing work. There was no-one at the office when they arrived and Mr Day asked an unidentified person at the premises "who was in charge?" The unidentified person was Mr Eagles who told Mr Day that they were to paint the area in the factory where a roller door was to be fitted and what colour to paint the office area where the incident occurred.

52. Mr Eagles stated that he then "verbally" inducted them to the premises. The 'induction' undertaken by Mr Eagles involved Mr Eagles showing Mr Day, Mr Dowd and Mr Walker the general location of the toilets, eating facilities and then discussing the specific work task that was to be performed by them on the day.

53. There was no other more formal induction or induction in accordance with the site specific induction form.

54. Mr Day, Mr Dowd and Mr Walker then commenced painting work around the roller door area. They had morning tea at 9 am and were finished morning tea at about 9:30am. Mr. Durheim arrived on site just after they had finished morning tea. Mr. Durheim spoke with Mr Day about the job for about 15 minutes and then left.

55. Mr Durheim, Mr Day, Mr Dowd and Mr Walker did not notice that one of the ledger bars had been removed from the scaffold. .

56. Mr. Durheim stated that Lenara did not provide a SWMS for the work to be undertaken at the site to C&E prior to the incident. Mr Durheim states C & E did have a copy of Lenara's "generic" work safety document.

Circumstances of the Incident

57. On the morning of 17 March 2009, after painting around the area where the roller door was to be installed, Mr Day was required to undertake the task of sealing the gyprock walls in the southeast corner of the office/reception area in what is referred to as the meeting room.

58. In order to undertake the task of the sealing of the gyprock walls on the internal structure, Mr Day was required to climb up the staircase and then to climb onto a work platform at the top of the scaffolding over the void.

59. On the day of the incident there was no dedicated safe access to the working platform on the scaffold. Mr Day and Mr Dowd were required to step up and over the stairwell hand rails to access the work platform.

60. At the time of the incident Mr Day was working along side Mr Dowd on the work platform. Mr Walker was working around the corner on the landing approximately 1.8 metres away.

61. At approximately 9:45 am on 17 March 2009, as Mr Day was working on the scaffold work platform preparing to roll the wall in front of him, a work deck plank that he was standing on dislodged from the scaffold work deck causing him to fall from the work deck approximately 4.6 m to the concrete floor below.

62. The steel plank became dislodged from the scaffold deck due to a ledger missing from its correct position on the northern side of the scaffolding closest to the wall on which Mr Day was working. This ledger would ordinarily have assisted with keeping the steel plank in its position in the work deck. The missing ledger was the one that Mr Alexander had removed.

63. The scaffold that Mr Day was working from was the scaffold that had been altered in or about March 2009, by Mr Alexander. The ledger that Mr Alexander had removed from the scaffold to allow access to a window was from the scaffold on which Mr Day was working at the time of the incident.

64. Mr Eagles was not present on the premises at the time of the incident he left the premises shortly after providing the 'verbal' induction to the defendant's employee's.

65. Anthony Durheim was not present on the premises at the time of the incident, having left the premises a short time before.

66. Mr Day was transported by ambulance to Tweed Heads Hospital for assessment and treatment.

67. Mr Day sustained a fractured pelvis, five fractured ribs, punctured lung, fractured left shoulder, a fractured left arm, fractured disc middle lower back and multiple fractured fingers.

68. As at February 2010, Mr Day had not return to pre-injury duties, however Lenara and Mr Durheim provided him some suitable duties including driving a truck delivering paint a couple of hours every Tuesday.

The systems of work prior to the incident

The Defendant

69. The defendant had an Occupational Health Safety and Injury Management System (OHS & IMS) document. This document had not been signed at the date of the Incident. The documents were prepared by an outside organisation on behalf of Lenara.

70. The OHS & IMS document is supported by procedures and forms that the defendant was required to use to manage the health safety and welfare of their employees.

71. The defendant's OHS & IM document states "where applicable, employees will attend a site specific safety induction before commencing work on each project. The site induction will be conducted by a Principal Builder representative. The site induction undertaken to ensure that the workers understand their requirements of the project in regards to Occupational Health and Safety".

72. Pursuant to the OHS & IM document the defendant's employees were required, where applicable, to attend a site specific induction before commencing work on each project. The site induction was to be undertaken to ensure that the workers understood the requirements of the project in regard to occupational health and safety.

73. The defendant did not comply with its own OHS & IM document in that it did not provide a site specific safety induction to its employees or ensure that one was provided by C & E prior to their commencing work on the premises (save for that referred to at [50] -[53] above).

74. Lenara's employees were not then informed of the need to undertake hazard identification and risk assessment prior to commencing work, regarding the risks associated with working at heights. Other than the matters set out at [54], no instruction or information was given to Mr Day in relation to his responsibilities as a leading hand.

75. On this job Lenara did not provide task-specific training to its employees and did not comply with its own OHS & IM document.

76. Lenara did not undertake a risk assessment for working at heights at the premises. Lenara did not undertake an inspection of the scaffold which ensured that the missing ledger was in place. In addition Lenara did not have safe access from the scaffold.

77. Lenara did not undertake a risk assessment for working at heights at the premises.

78. Lenara did not undertake an inspection of the scaffold which ensured that the missing ledger was in place.

79. Mr Day and Mr Dowd were not consulted with regard to risks of working at heights and measures to eliminate or control risks on the day of the incident. The discussions regarding the work on the day were those set out in paragraphs [50] to [54] above. Other than that set out in paragraphs [50] to [54] above, there were no more formal tool-box meetings upon induction on the day.

80. The defendant's OHS & IM document mandated task specific training (risk assessment training) must be provided to all employees, and documented to ensure that they understand the safe system of work prior to commencing work.

81. The OHS & IM document requires that Safe Work Method Statements will include the following:

i) Description of how work is to be carried out.

ii) Identification of the work activities assessed as having safety risk and the control measures that will be applied to work activities.

iii) Identification of the safety risks.

iv) Description of the control measures that will be applied to work activities.

82. Mr Durheim stated that the defendant's SWMS had been prepared after the incident and had been backdated to 12 March 2009.

83. Mr Day and others were not consulted with regard to procedures and measures to eliminate or control risks on the day of the incident. The discussions regarding the work on the day were those set out in paragraphs [50] to [54] above

84. Mr Day and Mr Dowd were not consulted with regard to risks of working at heights and measures to eliminate or control risks on the day of the incident.

85. There was no tool box meetings conducted which Mr Day, Mr Dowd or Mr Walker attended. The discussions regarding the work on the day were those set out in paragraphs [50] to [54] above

86. Other than that set out in paragraph [54] above, Mr Durheim did not attend the premises and inspect the works being undertaken.

C & E

87. C & E had a document entitled 'C & E Structures Pty Ltd, Brook Farm Factory, OHSE Management Plan' dated variously May and September 2009 ("OHSE Plan").

88. The OHSE plan included a section on 'Hazard Categories' (003) and rates the hazards from "Heights and Falls' as H2. According to its risk matrix (006) this was designated as being of high level of harm but unlikely to occur. The OHSE identified the risks relating to a potential fall from height.

89. The OHSE plan included a section entitled 'Workplace inspection checklist' (014). This checklist includes a section relating to 'Height work' and includes sections including 'perimeter protection', 'handrails in place', 'penetrations covered', 'fall restraint/arrest system in use', 'SWMS followed'. The OHSE identified the risks relating to a potential fall whilst working at height.

90. The C & E also had a document entitled, 'C & E Structures, Construction & Project Management, Site Specific Induction' ("Induction Plan").

91. The Induction Plan had sections dealing with 'Work at Height' and 'Scaffolding'. The section dealing with 'Work at Height' includes a requirement that work only be undertaken at heights where there is a safe working platform.

92. The Induction Plan had a section dealing with 'Scaffolding' which included a requirement that 'scaffolding inspections to be carried out on a weekly basis.'

93. However, the inspections that did occur did not meet the criteria of being formal documented audits of the scaffolding.

94. Pursuant to the C & E OHSE plan, all Contractors were to sign a "site specific induction" form stating they understood and would comply with all the safety items listed on the form when working on the premises.

95. The C & E failed to ensure that there was adequate supervision and monitoring of the work undertaken by its sub-contractors on the premises. This included monitoring the activities of Mr Alexander in respect to the modifications of the scaffolding and the activities of Lenara's employees. Mr Alexander, however, was an experienced plasterer-contractor, but did not tell anyone that he was going to modify in any way the scaffolding or that he had done so.

96. The C & E failed to conduct toolbox talks prior to the incident with its sub-contractors, including Mr Day.

97. In relation to the work being undertaken by the defendant's employees on 17 March 2009, there was little or no supervision from C & E in place when they first attended at the premises or subsequently while they were undertaking their tasks.

The systems of work after the Incident

The defendant

98. A Safe Work Method Statement was written subsequent to the incident by Mr Durheim.

99. The defendant's employees were required to return to the premises and continue to undertake painting duties after the Incident. However, they did not return until 20 March 2009.

100. However, prior to Lenara's workers re-commencing work at the Premises, Mr Durheim did not go back to the premises to ensure that there were safe systems of work in place for the defendant's employees and inspect the works being undertaken.

101. As at 23 February 2010, Lenara's Occupational Health and Safety and Injury Management System did not reflect any change after the Incident and has not been changed for a few years.

102. As at 23 February 2010, Mr Durheim agreed that more work was required on Lenara's system to ensure the health, safety and welfare of his employees whilst they are at work.

C & E

103. After the incident, C & E retained Wiggins to undertake significant modification of the scaffolding at the premises. This included the erection of handrails around the work platform over the stairwell and stairs to the work platform to provide safe access and egress.

104. After the incident, the C & E conducted one tool box meeting on 19 March 2009 and completed a workplace inspection checklist on 19 March 2009.

105. After the incident, the C & E kept induction training records. The defendant also ensured that persons on the premises were wearing PPE.

Decision last updated: 04 December 2012