District Court New South Wales

• Medium Neutral Citation: WorkCover v Allworth Constructions Pty Ltd [2014] NSWDC 184
• Hearing dates: 27/08/2014
• Decision date: 27 August 2014
• Jurisdiction: Criminal
• Before: Curtis J

Decision

The defendant is convicted and fined $72,375.

• Legislation Cited: Occupational Health and Safety Act 2000
• Category: Sentence
• Parties: WorkCover Authority of New South Wales (Inspector Moore) (Prosecutor); Allworth Constructions Pty Ltd (Defendant)
• Representation: M Moir appeared for the Prosecutor; K G Bennet appeared for the Defendant; WorkCover Legal Group (Prosecutor); Bridgeford & Associates (Defendant)
• File Number(s): 2013/147435

Judgment

1 On 2 September 2011 Mr Kenneth David Horsnell suffered serious injuries when he fell through a void in the first floor of a house construction site at Harrington Grove. The defendant Allworth Constructions Pty Limited had contracted to build the house and was responsible for the operations at the site.

2 The defendant pleads guilty to the charge that contrary to s 8(2) Occupational Health and Safety Act 2000 it failed to ensure that Mr Horsnell, a person who was not an employee, was not exposed to risks to his health.

3 In particular the defendant admits that it failed to ensure that secure perimeter screens, fencing, handrails or other forms of physical barriers were installed prior to Mr Horsnell coming on site; that the defendant failed to conduct an inspection of the void to ensure that it was securely covered prior to Mr Horsnell coming on site; that the defendant failed to ensure there was a written safe work method statement in place before working near the void that is required by regulation 227 Occupation Health and Safety Regulation 2001.

4 The defendant company is a residential building company carrying on work in New South Wales at the time on approximately 15 different locations. The company has been in business for 35 years.

5 The system pursuant to which Allworth constructed two-storey houses was that a concrete slab would be laid, frame walls erected and then bricklayers brought in to construct the outer walls of the lower floor and install joists to constitute the second floor. Those joists would leave voids in relation to those penetrations through which staircases were to ascend.

6 After the bricklayers had completed their tasks, subcontractor carpenters would come on the site in order to install the flooring and the frames of the second story. The system envisaged that once the floor and frames had been erected a proprietary system devised by Oldfields Advanced Scaffolding would be installed to occlude the void and protect persons from falling into it.

7 The Oldfields system was necessarily to be removed prior to completion of the house and because of this the brackets which supported the system were placed on top of the plates constituting the framing of the first floor. Had the flanges been installed before the framing went up the Oldfields system could not be removed.

8 The problem thereby created was that for a period of perhaps one day while the floor and framing was installed the void was uncovered and unprotected unless it was first protected by handrails and foot guards.

9 On the morning of the day in question - the day before the accident, Mr Adamson, the site supervisor employed by Allworth, contacted the subcontractors Mr Tesoriero and Mr Wormald, who traded as Teswor Pty Limited, and asked that they come on site to complete the framing.

10 On that day Mr Adamson inspected the site at about 8am and completed a site specific risk assessment. In that he noted that all four zones were unprotected and that the stairwell and open penetration protection system had not been installed. The form which he completed included this advice:

If you answer no to any of the items above you must complete the risk assessment table below and consult with all employees and subcontractors before commencing any work. If you cannot remove or control the hazard please contact your construction supervisor for advice before starting any work.

11 Mr Adamson did not require of Mr Tesoriero or Mr Wormald a safe working plan and left the site.

12 Mr Adamson and Mr Wormald took no steps to protect the void by the erection of a temporary security perimeter fence. Later in the day Mr Horsnell, who operated a business as a crane operator, attended upon the site for a delivery and ascended a ladder to the first floor where Mr Tesoriero and Mr Wormald were working in order to obtain their signature to a docket proving the provisions of his services.

13 While there he asked them if he could keep some surplus timber and apparently as a gesture of good will assisted them in the erection of a frame. In the course of this assistance he stepped back, fell through the void, and suffered severe injuries including brain damage.

14 The prosecutor submits that the objective gravity of the offence is to be weighed against both the potential for harm, which included possibility of death, and the actual harm suffered by Mr Horsnell.

15 Mr Horsnell's injuries were grave. He is profoundly disabled with no insight into his injuries. He is left with memory and sensory impairments and emotional liability. He will never work again. He was forced to sell his company because of his inability to work which he had established over 30 years. He is permanently reliant upon his family for ongoing support and care.

16 The gravity of the offence is also to be weighed against the foreseeability of the risk and the ready practicality with which it may have been avoided. In this case Mr Adamson actually foresaw the risk and noted that upon his sheet. Having foreseen it he took no steps to avoid it. The protection provided by handrails sufficient to obviate the risk occupied no more than five minutes of work following the injury.

17 Because the building trade and multi-storey buildings are notoriously associated with dangers it is necessary that general deterrence be reflected in this sentence. It is also appropriate that the penalty reflect denunciation by the Court of the offence in the light of the circumstances of Mr Horsnell.

18 It may be accepted this specific deterrence has a very limited role in the calculation of the penalty because following upon this injury Allworth has adopted an alternate system to cope with the possibility of voiding building work and that new system, which provides scaffolding before any work is carried out on the first floor, engineers out any possibility of there being unguarded void.

Subjective factors

19 The defendant has carried on building work for 35 years without conviction; this is an exemplary record in this trade.

20 Some years before the event Allworth Constructions, faced with competition from competitors in the costing of two-storey homes, removed themselves from this market rather than, as was the practice of their competitors, complete the works without scaffolding. This demonstrates a responsible attitude towards matters of health and safety.

21 Prior to the injury the defendants sought advice from various consultants in order to ensure that it addressed potential problems which it may not have recognised itself. Pursuant to the advice from these consultants management plans were in place in order to safely conduct its affairs. Audits periodically commissioned entitled the defendant to a discount on its insurance premium. The workers on the site were all highly experienced men who had been properly inducted into the working systems of Allworth.

22 The company, Teswor Pty Limited, has already come before the Court and was sentenced by Judge Finnane on 24 June 2014 to a fine of $18,750 being $25,000 before a 25% discount for the plea at the earliest opportunity.

23 I do not think that the matter is comparable. The penalty upon Teswor Pty Limited was moderated in consequence of its limited ability to pay given its modest income. The defendant company in the year 2013 made $1.2 million before tax profit.

24 Further, the difference between the culpability of Mr Tesoriero and Mr Wormald is that this defendant through the person, Mr Adamson, actually perceived the danger. It had control over the site and could have directed the subcontractors to obviate the problem.

25 As Judge Finnane pointed out in his remarks on sentence Mr Tesoriero and Mr Wormald were vulnerable persons who were directed to do the work and may have thought they had no option.

26 The culpability of all this is not entirely the casual act of negligence on the part of Mr Adamson. The company systemically had not required of its subcontractors that they submit safe working plans before commencing work on the site. That consensually is a systemic problem, although it is a systemic problem which perhaps resulted from some inadvertence on the part of the consultants offering advice.

27 It is agreed that the defendant should pay the prosecutor's costs in the sum of $13,500. That in itself constitutes a penalty and should be taken into account in the process. I believe a penalty of less than $100,000 would fail to properly denounce the conduct of the defendant and reflect the gravity of the injuries to Mr Horsnell.

28 I believe an appropriate penalty overall is $110,000. After the deduction of $13,500 that penalty would be $96,500. In recognition of the early guilty plea and cooperation with WorkCover the defendant is entitled to a deduction of 25%.

29 The defendant is fined $72,375. I order that the defendant pay costs in the sum of $13,500 and that a moiety of the penalty be given to WorkCover. The defendant is convicted and that is the penalty.

Decision last updated: 31 October 2014