Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector McGrath v Cooper [2013] NSWIRComm 14
• Hearing dates: 27/06/20126/07/2012, 16/07/2012, 27/07/2012, 13/08/2012 - Written Submissions
• Decision date: 27 February 2013
• Before: Backman J

Decision

(1) The defendant is convicted of the offence.

(2) The defendant is fined $6,500 with a moiety to the prosecution.

(3) The defendant is to pay the prosecution's costs as agreed, or in the absence of agreement, leave is granted to the parties to approach the Court for a determination

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Occupational Health and Safety Act 2000 (the Act) - plea of guilty to amended charge under s 9 of the Act - store manager injured after falling 2.9 metres from the unprotected edge of a mezzanine floor under construction - defendant contracted to build the mezzanine floor - defendant's responsibility to ensure fall protection measures were in place - conduct of injured person taken into account in mitigation of objective seriousness of the offence - offence objectively serious - deterrence principles considered - specific deterrence not applied - subjective factors - costs - whether costs order should be proportionate to fine imposed - orders
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Fines Act 1996; Occupational Health and Safety Act 2000
• Cases Cited: Department of Mineral Resources (Chief Inspector McKensey v Berrima Coal Pty Ltd and Another (2001) 105 IR 348; Ferguson v Nelmac Pty Ltd (1999) 92 IR 188; Inspector McGrath v Cooper [2011] NSWIRComm 142; Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd [2006] NSWIRComm 103; Inspector Stephen Cooper v Franklin Alden Coveney and Another [2008] NSWIRComm 80; McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353; 137 IR 310; Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143; Shannon v Comalco Aluminium Ltd (1986) 19 IR 358; WorkCover Authority (Insp Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 213; WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362; WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service) (2005) 143 IR 187
• Category: Principal judgment
• Parties: Inspector Cherie McGrath (Prosecutor); John Elmore Cooper (Defendant)
• Representation: Mr C Magee of counsel (Prosecutor); Mr G Bennett of counsel (Defendant); Criminal Law Practice; Legal Group; WorkCover Authority of New South Wales (Prosecutor); Bridgeford & Associates (Defendant)
• File Number(s): IRC 1055 of 2010

Judgment

1 The defendant pleaded guilty to an amended charge under s 9 of the Occupational Health and Safety Act 2000 (the Act). The subject matter of the charge relates to an incident which occurred on 23 September 2008 during the construction of a new office and trade retail facility at a construction site in Scone. On that day, Bradley Moran fell about 2.95 metres off the unguarded leading edge of a partly constructed mezzanine floor of the building.

2 The amended charge relied upon the following particulars and related measures that should have been taken:

Particulars of Defendants failings in relation to systems of work

F. The Defendant failed to ensure that systems of work for persons who were not his employees when working at heights of approximately 2.9 metres at the premises were safe and without risks to health.

Measures the Defendant should have taken but failed to take

G. The defendant should have taken but failed to take the following measures in order to ensure a safe system of work when working at heights, including:

i. developed and implemented a site-specific safety plan for the construction works for the new trade retail facility at the premises;

ii. installed or erected, at the leading edge of the mezzanine floor at the premises, secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height from the mezzanine floor in compliance with his Safe Work Method Statement, namely 'Working at Heights'.

iii. erected barriers, fences or other forms of physical barriers capable of preventing the use of the staircases as a means of access to the mezzanine floor by persons who were not his employees, prior to temporary fall protection systems being put in place on the mezzanine level;

iv. undertaken a formal hazard identification and risk assessment after he had installed the staircase to the mezzanine level, which included consideration and inspection of barriers to prevent access by persons who were not his employees, prior to temporary fall protection systems being put in place on the mezzanine level.

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

H. The defendant failed to provide adequate information and instruction to persons who were not his employees necessary to ensure their health and safety whilst undertaking work at heights on the mezzanine floor at the premises.

Measures the Defendant should have taken and failed to take

I. The Defendant should have taken but failed to take the following measures in order to ensure adequate information and instruction was given to persons who were not his employees in relation to working at heights, including:

i. provided signs or other notices to advise persons who were not his employees advising that they were not to access the mezzanine floor until temporary fall protection systems were put in place at the premises;

ii. ensured that Bradley Moran followed his instruction to install a physical barrier to prevent the use of the staircases, prior to his leaving the premises, where no temporary fall protection systems had been put in place on the mezzanine level at the premises.

3 The risk to safety identified in the charge was the risk of, "falling whilst working at heights of approximately 2.9 metres, off or from a partially constructed mezzanine floor at the premises."

Agreed Facts

4 At the time of the offence the defendant was a sole trader and self employed person. His primary undertaking was the construction of new residential buildings. He traded as John Cooper Building.

5 The defendant was engaged by Gould Bros & Co Pty Ltd (Gould Bros) to construct and fit out offices and fixtures inside a newly constructed steel framed building situated on the corner of St Aubins and Guernsey Streets, Scone (the premises). Part of the work the defendant was engaged to undertake involved constructing a mezzanine floor and offices on that floor.

6 Gould Bros supplied timber and building products to the construction industry. In its capacity as a supplier of building products, Gould Bros operated a central facility in Scone. Ian Whitehead was employed there as the General Manager and Bradley Moran was employed as the Store Manager. Basil Wilcher was employed by Gould Bros as its Upper Hunter Area Manager.

7 With regard to the premises under construction Gould Bros engaged a number of contractors, including the defendant, to complete the works. Gould Bros did not appoint a principal contractor. Instead it appointed Mr Wilcher as the site coordinator for the project. Mr Wilcher, although a long term employee of Gould Bros had no prior experience as a site coordinator on commercial construction risks. He did not complete a general construction induction course nor did he receive any information or training with regard to his responsibilities to the sub-contractors under his supervision. It was Mr Wilcher's responsibility as the site coordinator to supervise and co-ordinate the activities of the tradespeople at the site. This included providing information and advice to the contractors on behalf of Gould Bros.

8 As store manager at Gould Bros' central facility, Mr Moran was responsible for the day-to-day running of the retail facility which included the management of staff and customer relations. At the premises he assisted Mr Wilcher during the construction with some of the design work as well as the organisation of materials. On 12 September 2008 Mr Wilcher commenced annual leave and Mr Moran commenced acting in a caretaker role as the site coordinator at the premises.

9 The mezzanine floor which the defendant was contracted to build was to be suspended approximately 2.96 metres above the building's ground floor which consisted of concrete slabs.

10 The work undertaken by the defendant at the premises is described in the Agreed Facts. The relevant extracts from that document are set out below:

On 16 September 2008, the defendant and his work crew consisting of Shaun Seckold (Carpenter), Nicholas Whitehead (4th year Apprentice Carpenter) and Benjamin Clark (1st year Apprentice Carpenter) ("work crew") commenced work at the premises on the construction and fit out of the office buildings and mezzanine level inside the existing steel structure which had been constructed by Tri Steel.

Prior to commencing work the defendant did not develop or implement a site-specific safety plan for the construction works for the new trade retail facility at the premises.

On Monday, 22 September 2008, the defendant and his work crew installed metal cladding known as 'mini orb' to the lower wall frames below the partially constructed mezzanine level in the area where steel staircases that led up to the mezzanine floor were to be installed. In the afternoon the defendant and his work crew undertook the installation of two sets of steel staircases to provide access to the mezzanine level.

The two sets of steel staircases were manoeuvred into place with a forklift operated by Mr Moran. They were then attached to the mezzanine floor.

Once the staircases were attached, the defendant's work crew commenced to affix a handrail to one of the sets of staircases. The other set of staircases did not have a handrail attached on that day.

After he had installed the staircase to the mezzanine level the defendant did not undertake formal hazard identification and risk assessment, which included consideration and inspection of barriers to prevent access by persons who were not his employees, prior to temporary fall protection systems being put in place on the mezzanine level, although the defendant identified the risk that persons may use the staircases to gain access to the mezzanine level and considered measures to limit such access.

The defendant had a number of generic HIA Safe Work Method Statements including 'Safe Work Method Statement No 001' for the work activity/task of 'Working at Heights' ('SWMS'). This SWMS stated in respect to 'Responsibility' the following:

"The person doing the work is responsible for carrying out a particular action, as listed in his SWMS. The supervisor is responsible to ensure that the person is competent and satisfied with the procedures listed. The supervisor is required to provide supervision, to the extent necessary, to make sure the SWMS is being followed and to take immediate corrective action if it is not."

The SWMS also dealt with a number of Job steps, Identified Hazards and set out suggested controls.

In respect to the Job Step "Access to work area" the SWMS identified hazards including "Slips, trips, falls, unsecured/unstable ladders/steps or ramps, lack of hand rails and/or edge protection". The proposed control measures in the SWMS included "Secure...steps..., ensure edge protection and handrails are in place where required...".

In respect to the Job Step "Check equipment and working area below" the SWMS identified hazards including "falls and trips". The proposed control measures in the SWMS included "position safety signs".

In respect to the Job Step "Proceed to work area" the SWMS identified hazards including "Falls, trips, Lack of attention to concentration".

In respect to the Job Step "Leaving the work area" the SWMS identified hazards including "Slips, trips and falls". The proposed control measures in SWMS included "Secure...equipment against...unauthorised use when vacating the work area (even over short periods) check stability and any changes to ladders, steps or ramps before descending...".

At the time of the completion of the installation of the two sets of staircases to the mezzanine area, the defendant did not install any fall prevention systems such as secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height, at the leading edge of the floor of the mezzanine level.

The defendant did not put in place any barrier to prevent the use of the stairs to gain access to the mezzanine level. Nor did the defendant place any sign or warning advising persons that the stairs were not complete and advising that the use of the stairs to the mezzanine level was prohibited.

11 After the staircases were installed on 22 September 2008 the defendant asked Mr Moran to put a barricade around the staircases. According to the defendant he said to Mr Moran, "preferably not tape because people would step through it". The defendant also maintains he asked Mr Moran to obtain a couple of slings of timber with a forklift to put across the staircases, in order to make it awkward for persons attempting to gain access to the mezzanine level. The defendant said he was aware that Mr Moran had a forklift licence and that Gould Bros had available slings of timber that could be placed in front of the bottom of the staircases. According to the defendant Mr Moran agreed to do this straight away.

12 The defendant's account of his discussion with Mr Moran received some support from Mr Seckold and Mr Clark. Mr Seckold said he heard the defendant ask Mr Moran to barricade off the staircases. Mr Clark said he heard the defendant "tell' Mr Moran to block off the stairs with the slings of timber and not use tape.

13 Mr Moran recalled the defendant saying to him, "...we better restrict that, cordon off the stair area". Mr Moran understood that the defendant was raising his concerns because one set of staircases did not have a handrail. According to Mr Moran, the defendant, "didn't really mention the mezzanine level" but instead suggested to Mr Moran that it was, "more effective to petition the area off to restrict access."

14 About an hour after the discussion with Mr Moran the defendant and his work crew left the premises. Prior to leaving however, the defendant did not check whether Mr Moran had in fact placed slings of timber across the stairs or had erected some other form of physical barrier designed to prevent the use of the staircases.

15 Mr Moran failed to put in place any of the defendant's suggested safety measures. Instead, at around closing time on 22 September, he decided to close the roller door and the sliding door, both of which provided access to the partly constructed building, in order to limit access to the building. There was, however, a doorway to the interior which in fact did not have a door at the time.

16 The defendant and work crew were not on site on 23 September.

17 On 23 September 2008 at about 9:00am Ian Whitehead, the general manager of Gould Bros, and Robert Lumbley, the marketing manager, arrived at the premises and conducted an inspection. Both men, together with Mr Moran, accessed the mezzanine floor. While there Mr Whitehead observed that no safety rail had been installed at the leading edge of the mezzanine floor. He discussed with Mr Moran the need to install a permanent railing on the mezzanine floor. Mr Whitehead also undertook a risk assessment in which he identified a risk of falling while work was being undertaken on the mezzanine level. Mr Whitehead also said that he asked Mr Moran to ensure that the defendant installed a temporary fence or railing arrangement to secure the mezzanine area in order to prevent entry to the area until it was completed.

18 Mr Moran's recall of the discussion with Mr Whitehead was somewhat different. He said the discussion which took place was of a general nature and focussed on the final erection of a handrail for the mezzanine level. According to Mr Moran he was not asked by Mr Whitehead to install a temporary handrail. Rather, the discussion concerned the need to cordon off the area and restrict access to the mezzanine floor.

19 It is not necessary for the Court to resolve any conflict in the respective accounts of Mr Moran and Mr Whitehead. The accounts are only reproduced in the sentencing reasons for the purpose of demonstrating that Mr Moran had discussions before the accident concerning the need to implement safety measures with a view to, at minimum, restricting access to the mezzanine floor in order to minimise what was in effect an obvious and recognised risk to safety.

20 Mr Whitehead and Mr Lumbley left the premises after conducting the inspection. Neither Mr Moran nor anyone else from Gould Bros took any steps to secure the mezzanine area or otherwise prevent entry to the mezzanine floor until fall protection systems, such as a temporary handrail, were installed.

21 At about 2:15pm that day Mr Moran ascended the staircase to the mezzanine floor with Donald Adams, a contractor engaged by Gould Bros to undertake electrical work at the premises. At that time the mezzanine level was still unsecured with no temporary handrail or other form of physical barrier in place capable of preventing falls from height. Mr Moran was later asked why he ascended the mezzanine level knowing the risks associated with the absence of any fall protection. He said he felt that he and Mr Adams were not going up to the mezzanine floor for a long amount of time and he thought it was a reasonable risk to take.

22 According to the Agreed Facts prior to going up the staircase to the mezzanine level Mr Moran and Mr Adams talked about the need to be careful and to be aware of their surroundings at all times. Despite all previous indications and warnings about the obvious hazard presented by the unsecured mezzanine level, Mr Moran while in the process of looking towards the ceiling and turning, lost his balance and fell about 2.9 metres off the edge of the mezzanine onto the concrete floor below. He suffered a broken elbow.

Objective seriousness

23 The foregoing facts demonstrate that the defendant was aware of the risk of falling but failed to take the appropriate safety steps to deal effectively with the risk. The defendant had formulated some written precautions designed to obviate the risk but he failed to follow through with the actual implementation of any safety measures. There is no doubt that the responsibility to implement the measures fell squarely on the defendant. Nevertheless this is not a case where the defendant, having recognised the risk failed to do anything to address it. He spoke to Mr Moran about the necessity to put in place measures designed to at least restrict access to the mezzanine level. He left the premises with the understanding that Mr Moran would take steps to erect a barricade around the unsecured set of staircases. The suggested form of barricade was the slings of timber which could be placed in front of the bottom of the staircases. His account of his discussion with Mr Moran about the need to implement the measures was largely confirmed by the eye-witness accounts of Mr Seckold and Mr Clark. Mr Moran's version of the discussion did not directly contradict the defendant's account.

24 As well as being put on notice by the defendant of the risk associated with being on the mezzanine level when it lacked any form of fall protection, Mr Moran was also put on notice of the risk by Mr Whitehead who also suggested the need and the means to ensure the area was secured. Despite all this Mr Moran chose to put his own safety at risk.

25 In my view, Mr Moran's conduct in knowingly placing his own safety at risk operates to diminish or mitigate the objective seriousness of the defendant's offence. What the facts, overall, indicate is that the gravamen of the defendant's offence was his failure to follow through and ensure that access to the mezzanine level was prevented. Put another way the defendant should have, but did not, taken appropriate measures himself to ensure adequate fall protection measures were in place at the point where the risk arose, that is, where the two sets of staircases were installed, one of which lacked any form of safety barrier capable of preventing falls and allowed unrestricted access to the unprotected mezzanine level.

26 It was submitted on behalf of the defendant that the risk to safety, that is the risk of falling from the unsecured mezzanine level was not foreseeable. The premise upon which the submission rested was that it could not have been foreseeable on the defendant's part that Mr Moran would disregard what the defendant asked him to do. Mr Moran was the site coordinator appointed by Gould Bros, the principal contractor. He had a licence to operate the forklift and could facilitate the placing of the slings of timber across the staircases. The defendant took these matters into account when he asked Mr Moran to place a barricade around the staircases. The defendant was entitled to expect that Mr Moran would implement his suggestions. In addition Mr Moran had been made aware on at least two occasions of the risk. Given these matters it was not foreseeable that Mr Moran would choose to ignore the risk and place himself in danger.

27 In support of the submissions the defendant relied up Hill J's judgment in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at pp 380 to 381. The proposition sought to be extracted from the judgment was that if Mr Cooper, with the benefit of hindsight, had known Mr Moran would ignore his suggestion and placed himself at risk, the defendant would have acted with greater force in dealing with the problem. Reasonable hindsight, however, should not be substituted for reasonable foreseeability.

28 In my view, Maitland City Council provides no assistance to the defendant's submissions regarding the factor of reasonable foreseeability. Maitland City Council was a contested hearing. The evidence in that case was that the defendant had a safe working procedure with regard to the operation of a cockerel box which was attached to the rear of a truck being used to spread blue metal onto a round surface. A worker was fatally injured when he fell under the rear wheels of the truck while attempting to mount the cockerel box when the truck was moving. Hill J found (at 380, 381):

As is apparent from the evidence the defendant has a standing instruction that employees are not, amongst other things, to mount or dismount a vehicle whilst it is moving. This sort of basic or common sense safety instruction would obviously have application, for example, to a person who attempted to jump on or off the running board, or climb onto or off the back or side, of a moving vehicle. It is difficult to see what practicable and effective measures an employer could take to prevent a person employed to work on a vehicle, much less a person not employed on it, from doing the sort of thing here in question if that person wilfully or carelessly disregards the most basic rules of common sense necessary for his/her own safety.

...

Even if the view were taken that the risk to Mr Scoles arose from the conduct of the employer's undertaking,I consider that it was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision. In my opinion the actions of Mr Scoles were not reasonably foreseeable. As Mr Fitness said in evidence: the cockerel box procedure is a safe one if the person operating the cockerel box watches what he is doing ''but then again you are not looking for no one to jump on, are you?'' It does not follow, in my view, from the fact that the Council had standing instructions forbidding employees on penalty of dismissal, to, amongst other things, mount or dismount moving vehicles, that it was reasonably foreseeable that a person would run across the road and attempt to climb onto the back of the cockerel box of a truck on which he was not employed, while it was reversing and laying blue metal on recently laid hot bitumen. If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight. After all, in 1993 three personnel employed by WorkCover as experts in relation to the matter of safety in the workplace did not foresee any dangers or risks arising from the cockerel box itself and the systems of work involved in its operation.

29 Here, the risk was not only obvious it was known to the defendant but in contrast to the facts in Maitland City Council, the defendant did not have in place any adequate safety measures or procedures directed to minimising the risk. The test for whether the risk to safety is reasonably foreseeable is objective: see for example Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 364. This is not a case where the defendant could be said to be relieved of the obligation to ensure relevant safety measures were in place. The defendant was obliged as part of his undertaking to ensure that the appropriate fall protection measures were put in place. According to the Agreed Facts the defendant was responsible for the construction of the mezzanine floor but left the leading edge of the mezzanine floor unprotected and failed to erect a barricade around one set of staircases which provided access to that level. There is no doubt that the defendant considered measures designed to limit access to the floor. He developed written procedures, including safe work method statements, which expressly identified the risk of falling while working at height and proposed various fall protection measures designed to address the risk. What he did not do was follow through and implement those measures or ensure that someone else did. These matters attest to some genuine attempt made by the defendant to identify the risks, and they operate to mitigate to some extent the objective seriousness of the offence. However nothing has been advanced on the defendant's behalf to persuade the Court that the risk to safety was not reasonably foreseeable. It clearly was.

30 Mr Moran's conduct on the other hand in disregarding not only the defendant's request but also Mr Whitehead's instruction to address the risk and then deliberately placing himself in a situation of risk will be taken into account by the Court as a factor which operates to mitigate the objective seriousness of the offence: see Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at 145 where the Full Bench said:

The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing.

31 The circumstances of the offence also facilitate the conclusion that the consequences arising from the defendant's acts and omissions (as particularised in the amended charge), which gave rise to the risk were likely to be serious. The failure to put in place measures in the form of appropriate fall protection resulted in a risk of falling some 2.9 metres off the unprotected edge of the mezzanine level onto a concrete floor. Mr Moran suffered serious injuries from the fall.

32 Simple measures were also available to the defendant to address the risk. Many of these measures formed the subject matter of the acts and omissions particularised in the amended charge. The most obvious and straightforward measure would have been the erection and installation of a secure barrier or handrail capable of preventing a fall.

33 These objective factors, when considered in combination, compel the conclusion that the offence was objectively serious, taking into account those factors which mitigate the objective seriousness.

Deterrence

34 Falls from height at constructions sites, often causing serious injuries, are regularly encountered by Courts hearing prosecutions under the Act. In Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd [2006] NSWIRComm 103 at [11], I found:

The circumstances of these matters exhibit a strong case for general deterrence. Mr Murdock was exposed to a serious risk to his safety because he was required to work on top of scaffolding at a height of some five metres. The risk to safety was compounded by the failure on the part of both defendants to provide Mr Murdock with any fall protection device or to devise some procedure or work method that would have ensured that Mr Murdock could carry out his work safely. Falls from heights at construction sites happen with alarming regularity and often result in serious or even fatal accidents. In most cases such accidents are easily avoidable and require only relatively simple measures to work out a procedure that will keep workers safe. Employers on construction sites should also be made aware that they all share equally the responsibility for ensuring the safety of persons at work sites. If for example the principal contractor has a practice of inducting all workers who enter the site then subcontractors also working at the site with those workers should ensure that they have been properly inducted before work commences. It has been emphasised many times in this jurisdiction that an employer cannot delegate its responsibilities to ensure a safe work place and ensure workers' safety. This is especially important to understand in the context of a typical construction site at which may be found a large and diverse workforce consisting of a principal or head contractor, any number of specialists contractors and labour hire personnel. Working at heights is a potentially dangerous activity and it is imperative that employers take adequate measures to ensure their workers can work above ground safely and without fear of injury.

35 I adopt these findings in these sentencing reasons. I would add that defendants who fail to take measures to protect workers at construction sites from the risk of falling can be expected, ordinarily, to incur heavy penalties.

Specific Deterrence

36 I do not propose to apply the principle of specific deterrence. The evidence reveals that the defendant ceased to operate his business at the end of December 2012. The defendant also suffers from serious depression caused in large part as a result of the circumstances leading up to and including Mr Moran's accident. This matter is dealt with in a report by Mr Warren J Freeman, a psychologist who saw the defendant on 17 occasions commencing on 21 March 2011. Mr Freeman's opinions are set out in the report, the relevant parts of which are extracted below:

In the sessions we have, John frequently refers to the accident in which the person was injured, and which led to the current court case. He continually blames himself, going over and over the incident to the point where it is always in his thoughts, and leaves him overcome with remorse and contrition. This has caused him to believe that he is worthless and useless, and is a central factor in his ongoing serious depression.

At the present, John will not be able to resume any kind of employment in the building industry, either working for himself or for anyone else. His self-confidence and self-esteem have fallen to the point where he avoids any kind of task out of feelings of inadequacy and incompetence.

I am not sure if John could cope with any paid employment at the moment, as the slightest criticism or difficulty would probably cause him to remove himself from the situation. This would be particularly true of any job involving face-to-face contact with the public.

37 Mr Freeman's report was not the subject of challenge and I therefore accept its contents. I also note that at the time of the sentence hearing the defendant was unemployed with no immediate prospects of returning to the workforce.

Maximum penalty

38 The defendant is not adversely recorded and faces a maximum penalty of $55,000.

Subjective features

39 It was conceded by the prosecution that the defendant entered a plea of guilty to the amended charge at an early stage. I therefore propose to award a discount of 25 per cent in recognition of the utilitarian value of the plea.

40 It was also conceded by the prosecution that the defendant cooperated with the investigating authorities, a factor which will be taken into account in mitigation of penalty.

41 The absence of prior convictions also entitles the defendant to leniency normally extended to first time offenders.

42 There was some dispute between the parties during the sentence hearing concerning whether the defendant's expressions of remorse satisfied the requirements set out in s 21A (3) (i) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act). The provision requires evidence to be placed before the Court that an offender has accepted responsibility for the offence and has acknowledged any injuries resulting from (here) the acts and omissions, or made reparation for such injury. The Court granted the defendant leave to file further material in support of any submissions which might be made on his behalf with regard to the factor of contrition.

43 After the sentence proceedings were concluded the defendant filed further evidence and submissions on the issue. The prosecution filed further evidence in reply. Neither party contacted the Court with regard to the further material filed. I propose therefore to consider the additional material in these sentencing reasons.

44 In an affidavit the defendant expressed remorse for his actions which resulted in the injury to Mr Moran. He explained his reaction upon hearing of the accident in the affidavit as follows:

I became aware of the incident involving Mr Bradley Moran on 23 September 2008 when Mr Don Adams rand me about it at or around 4 pm that day. At the time I was in Maitland taking my son from Newcastle to his home in Singleton. I couldn't believe that it had happened, as I had understood when I left the site that Mr Moran had agreed to place a couple of slings of timber across that base of the staircases to prevent access to the mezzanine level.

Although I was scheduled to work at another site the next day, I was upset and concerned both as to the accident and the injury to Mr Moran and after getting off the phone from Mr Adams, I decided to attend the site first thing the next day with my work crew and erect temporary fencing.

After Mr Adams called, Mr Ian Whitehead rang me at or around 5 or 5:30 pm that day and said words to the effect of:

"Brad Moran's fallen off the mezzanine level"

I replied saying words to the effect of:

"I know, Don Adams has told me."

Ian Whitehead then said words to the effect of:

Can you attend the shed early in the morning?"

I replied words to the effect of:

"Yes, we will be there first thing in the morning"

The erection of the fencing as depicted in the photographs in these proceedings took half the day and on completion I returned to my other work site with my crew.

Because of the way I felt about the accident involving Mr Moran, I did not charge for the work.

I am truly sorry that Mr Moran suffered the injury that he did.

45 In written submissions, the prosecution accepted that the material extracted immediately above demonstrates that the defendant took steps after the accident to remedy the risk to safety. However the fact that the defendant did not charge Gould Bros for the work should not, according to the prosecution, be regarded as a mitigating factor. The prosecution also sought to emphasise that there was no evidence of any attempt made by the defendant to contact Mr Moran with a view to expressing his condolences and no evidence that the defendant acknowledged that his failures contributed to the circumstances of the incident.

46 In my view the defendant has expressed remorse in accordance with the requirements in s 21A (3) (i) of the CSP Act. In his affidavit the defendant said he was "truly sorry" that Mr Moran was injured. He took immediate steps to rectify the problem, namely erecting temporary fencing. It is irrelevant whether the defendant charged for this work. In addition, any adverse impact on a defendant in the aftermath of a workplace accident may also be relevant to the issue of whether the defendant has demonstrated remorse and contrition and therefore is entitled to have that factor taken into account in mitigation of penalty. I dealt with the issue in some detail in Inspector Stephen Cooper v Franklin Alden Coveney and Another [2008] NSWIRComm 80 at [34] - [41]. The point is well illustrated in two decisions of the Vice-President, Justice Walton in WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 213 at [68], and in Department of Mineral Resources (Chief Inspector McKensey v Berrima Coal Pty Ltd and Another (2001) 105 IR 348 at [201].

47 In the former decision, his Honour said:

Contrition, repentance and remorse after an offence are mitigating factors which may lead to a reduction in the sentence otherwise to be imposed: A M Hoipo & Sons Pty Ltd (at par 64); Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority (NSW) (Inspector Wilson) (2000) 99 IR 159 at par 17). I consider that the defendant is contrite and has demonstrated a high level of remorse. I have also had regard to the significantly adverse changed personal, business and professional circumstances of the defendant which arose as an aftermath of the incident.

48 In the latter decision his Honour found:

I have had the opportunity of observing the second defendant giving evidence in these proceedings. He was genuinely contrite. He has suffered remorse, shock and distress over the incident. Four days after the incident he started to develop chest pains and ultimately suffered a heart attack. In my view, this had a direct connection to the death of Mr Fraser. The second defendant did not return to work for two months, yet continues to suffer, in my view, at a personal and psychological level as a result of the incident.

49 In the present proceedings, Mr Freeman's unchallenged evidence was that the defendant's adverse reaction to the circumstances of the offence which led to Mr Moran's accident was a "central factor" in his ongoing serious depression. The authorities cited above indicate that psychological injuries suffered by a defendant as a direct result of the circumstances of an accident may be relevant to an issue as to whether the defendant has demonstrated remorse and contrition.

50 The defendant was also granted leave to adduce further evidence and submissions in support of the submission made on his behalf during the sentence proceedings that he has a limited capacity to pay a fine.

51 During the sentence proceedings the prosecution complained that the evidence relied upon by the defendant, designed to demonstrate that he has a limited, or no, capacity to pay a fine, was deficient because it was comfined to his business income. No material was adduced with regard to the defendant's personal circumstances, which the prosecution contended placed it and the Court in a difficult position in terms of assessing whether there exists sufficient evidence to establish matters that might fall within s 6 of the Fines Act 1996.

52 The evidence upon which the defendant placed reliance during the sentence proceedings is found in an affidavit of John Hallett sworn on 26 June 2012. Mr Hallett, a chartered accountant, produced two documents which provided information in relation to the financial affairs of the defendant's business, John Cooper Homes. The documents, in combination, reveal a significant reduction in business earnings for the 2012 financial year but a net asset position for that financial year of $133,074.

53 An affidavit of the defendant filed after the sentence proceedings reveals that the defendant's business ceased to operate in December 2011 and that since that time he has been unable to carry out any paid work and is currently paying his debts from his savings. The affidavit also updated the defendant's net asset position (in the vicinity of $97,305). In addition the affidavit annexed information with regard to the defendant's superannuation account. As at 30 June 2012 that account was valued at $137,949.10. The affidavit also annexed material with regard to the defendant's residential property. The property is jointly owned by the defendant and his wife, is unencumbered, and is valued at an amount between $370,000 to $400,000.

54 A second affidavit prepared by Mr Hallett some time after the sentence proceedings annexed further details of the defendant's current financial position. The annexures included Annual Reports for the financial years ending 30 June 2009, 2010 and 2011, as well as the defendant's income tax returns for the financial years ending 2009, 2010 and 2011. The last mentioned income tax return discloses a net profit from the defendant's business, including reconciliation adjustments, of $87,591. According to Mr Hallett, it is anticipated that the defendant's income tax return for 2012 (yet to be completed) will show a small loss.

55 According to the defendant, these records demonstrate that he is a man of limited financial means with no ability to supplement his current financial position through further work.

56 Also relevant to my consideration of this issue is the report of Mr Freeman referred to earlier. According to Mr Freeman, whose account was unchallenged, as at June 2012 the defendant will not be able to resume any kind of employment in the building industry.

57 One further matter should be mentioned for completeness. In written submissions the prosecution pointed to an investment property in relation to which the defendant was claiming depreciation expenses, according to a depreciation schedule which formed part of the 2009 Annual Report annexed to Mr Hallett's second affidavit. According to the prosecution, this asset was not otherwise disclosed in the defendant's affidavits. The matter was however clarified in further affidavits and submissions filed on the defendant's behalf. It emerged from the further material that the investment property was sold with some of the proceeds used to meet expenses and the remainder representing "cash at bank" in an amount of $64,959.21 which was disclosed in one of the defendant's earlier affidavits.

58 Under s 6 of the Fines Act, the Court is required to consider, in the exercise of its discretion, information on the financial means of a defendant, "as is reasonably and practicably available", as well as other matters which, in the Court's opinion, are relevant to the fixing of the fine. The onus is on the defendant to satisfy the Court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of penalty: McColl v John Watson Building Services Pty Ltd [2004] NSWIRComm 353; 137 IR 310 at [24]. It is significant when undertaking an assessment as to the financial means of a defendant that the Court should bear in mind that notwithstanding the requirement to take into account a defendant's financial position when determining penalty, the penalty must ultimately reflect the objective seriousness of the offence: McColl at [25]. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188, Wright J, President, said on this issue (at 209):

The financial position and more particularly the means of the defendant should be taken into account in relation to the question of penalty. Otherwise it is inappropriate to consider the fact or amount of legal costs, consulting and other fees. In any event, it was not submitted that I should. I should, as submitted by counsel for the informant, consider not only the financial information included in the correspondence from the accountants, but also the defendant's asset position. Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. The penalty imposed will reflect the consideration given to this aspect as discussed above. I have also had regard to the submissions filed by the informant in respect of the additional affidavit and issues arising from it. Further, I have considered and applied the authorities referred to therein, particularly Haynes v C I & D Manufacturing (at 457-458); R v Sgroi (1989) 40 A Crim R 197 and Rahme v The Queen (1989) 43 A Crim R 81 . Finally on this aspect, I indicate that I do not consider that the penalties imposed are beyond the means of the defendant.

59 The approach to be taken, which I intend to adopt, is set out by Walton J, Vice-President, in WorkCover Authority (Insp Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 at 476:

Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86 .

60 The material relied upon shows that the defendant currently is not earning any income but has assets, including cash in the bank in the vicinity of $65,000. Taken as a whole, the material shows that the defendant is capable of paying a modest fine.

Gould Bros

61 In written submissions, the prosecution asserted that "on the material before the Court" the conclusion is available that the defendant had a degree of contribution equal to Gould Bros with regard to creation of the risk and the failure to address the risk. The prosecution did not expressly direct the Court's attention to any material which might have provided support for the contention. There is material in the Agreed Facts which provides some of the factual background relevant to the participation of Gould Bros in the circumstances of the accident. The material gives rise to a conclusion that Gould Bros, as principal contractor, appointed various of its employees to a number of senior supervisory positions at the premises. None of those persons appeared to have any relevant experience with regard to the supervision of contractors or of the work undertaken at a construction site. The material however is not sufficiently detailed to enable the Court to engage in a proper analysis of the respective roles and culpabilities of the defendant and Gould Bros.

Costs

62 The defendant contended that any costs order to be made should be proportionate to the fine imposed. The appropriate order according to the defendant should be that the parties are directed to agree on costs and in the event agreement is not reached that the matter be relisted before the Court for disposition.

63 The prosecution sought the usual order as to costs.

64 Further written submissions were received by the Court on this issue after the sentence proceedings had concluded. The prosecution while maintaining its earlier submission that the usual costs order should be made, acknowledged that under s 6 of the Fines Act 1996 it was a relevant consideration to have regard to other assets available to pay a fine and any costs order made. The prosecution also relied on the defendant's conduct in pursuing an application for further and better particulars which was unsuccessful (see Inspector McGrath v Cooper [2011] NSWIRComm 142) and pleading not guilty to two charges which had been laid against him. This conduct, it was said, put the prosecution to considerable expense because the defendant initially required all witnesses to be made available for cross-examination.

65 In relation to the last mentioned matter, the prosecution later withdrew one of the charges and the defendant entered a plea of guilty to the amended charge. This set of circumstances does not warrant an award of costs in the prosecution's favour, that is, for any costs that may have been incurred in the initial preparation for a defended hearing in relation to a charge which was later withdrawn. The prosecution amended the remaining charge (over objection) which resulted in the plea of guilty. On the other hand, the prosecution is entitled to its costs incurred in relation to the defendant's unsuccessful application for further and better particulars and the prosecution's successful application to amend the charge (in relation to which costs were reserved): see Inspector McGrath v Cooper at [61].

66 The defendant's contention on the issue of costs proceeded upon the basis that the defendant only had a limited capacity to pay a fine. I have found, based on the defendant's financial records and other material, that the defendant's finances are such that he is able to pay a modest fine which will be taken into account when imposing penalty.

67 There is no doubt that the Court can make an order for costs in the terms proposed by the defendant. In WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service) (2005) 145 IR 187, a Full Bench held that Boland J in the Court below, did not fall into error in ordering the defendant to pay 20 per cent of the prosecution's costs of the proceedings in an amount as agreed, or if agreement could not be reached, leave was granted to either party: at [117]. Boland J's reasons for making the order were extracted in the Full Bench judgment (at [118]):

Having weighed up the objective seriousness of the offence and the relevant subjective factors including, in particular, the defendant's relative impecuniosity, and noting that the purpose of costs is not punishment, I have decided the defendant will pay 20 per cent of the prosecutor's costs. As a consequence of the events of 3 July 2002, which was not all of his own making, the defendant and his young family face a period of quite severe emotional and financial hardship. I can see no point in adding to their difficulties by simply adopting the usual rule that costs follow the event. I do not consider in this case that to do so would be just and reasonable.

68 In expanding upon the finding that Boland J did not fall into error, the Full Bench said (at [133]):

His Honour, in our view, did not fall into error on the issue of costs. In accordance with established principle, the court must make its determination in accordance with s 6 of the Fines Act. The court must also set the appropriate penalty for the offence giving proper weight to the objective seriousness of the offence. The court must then determine the appropriate costs order. Such a consideration, in our view, may also take into account the financial situation of the defendant. In so ordering the court must then determine that the total fine and costs order be an "acceptable total" or as otherwise said "just and reasonable". If the total penalty and costs order is viewed by the court to be excessive the court must make an appropriate adjustment to the costs order. The total must not be disproportionate to the offence. Boland J took into consideration this latter step in his determination as to costs when he stated at [51]:

"The prosecutor sought costs and a moiety of the fine. The defendant accepted that the usual order as to costs was that the defendant be required to pay the prosecutor's costs in an amount as agreed or assessed. However, it was submitted, costs were ultimately in the Court's discretion and the Court must exercise its discretion as to costs in accordance with what is just and reasonable."

69 In these proceedings, although the material produced by the defendant demonstrates that he is capable of paying a modest fine, the evidence also indicates that he suffers from a serious depression and is currently unable to work in his chosen profession. Given these matters, it is appropriate in the exercise of my discretion, to order that the defendant pay the prosecution's costs as agreed but in the absence of agreement to give the parties leave to approach the Court for a determination, if required.

Orders

70 In IRC 1055 of 2010, the Court makes the following orders:

(1) The defendant is convicted of the offence.

(2) The defendant is fined $6,500 with a moiety to the prosecution.

(3) The defendant is to pay the prosecution's costs as agreed, or in the absence of agreement, leave is granted to the parties to approach the Court for a determination.

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Decision last updated: 28 February 2013