3
[Extract from Queensland Government Industrial Gazette,
dated 22 May, 2009, Vol. 191, No. 3, pages 63-66]
INDUSTRIAL COURT OF QUEENSLAND
Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate
Adam John Low AND Manchester Roofing Pty Ltd (C/2009/8)
PRESIDENT HALL / 7 May 2009DECISION
By a complaint made on 12 March 2008, Manchester Roofing Pty Ltd was charged with a breach of s. 24 of the Workplace Health and Safety Act 1995 (the Act). The obligation said not to have been discharged was that at s. 28(1) of the Act. The "risk" was particularised as follows:
"The risk is the risk of death or injury, including the risk of the fracture in the petrous temporal bone (side of skull) caused injury to the cranial nerve 8 (nerve from the brain that is responsible for balance and hearing) and complete hearing loss in the right ear with tinnitus (ringing in the ear) and vestibular (balance) deficits, to Luke Thomas WALKER.
The source of the risk emanates from -
The system of work adopted for the placing of room battens on a residential housing site.".
A circumstance of aggravation was pleaded, viz., injuries amounting to grievous bodily harm to Luke Thomas Walker. There was an agreed statement of facts:
"NEALE GARATY v MANCHESTER ROOFING PTY LTD
AGREED STATEMENT OF FACTS
The Charge
1. MANCHESTER ROOFING PTY LTD (the defendant) is charged with an offence under s. 28(1) of the Workplace Health and Safety Act 1995 (the Act) in that being a relevant person the defendant failed to ensure that the workplace health and safety of its workers was not affected by the conduct of its business or undertaking.
2. The risk is the risk of death or injury, including the risk of the fracture in the petrous temporal bone (side of skull) caused injury to the cranial nerve 8 (nerve from the brain that is responsible for balance and hearing) and complete hearing loss in the right ear with tinnitus (ringing in the ear) and vestibular (balance) deficits, to Luke Thomas WALKER (WALKER).
3. The source of risk emanates from -
· The system of work adopted for the placing of roof battens on a residential housing site.
4. As a result of the failure to discharge the workplace health and safety obligation WALKER sustained grievous bodily harm.
5. The offence occurred on the 16th day of May 2007 at a workplace being a residential housing site located at 86 Howlett Road Capalaba in the state of Queensland.
Background
6. The defendant's principal place of business is based at 7 Ajax Court, Eatons Hill. Workers are deployed from here to conduct roofing works at various building sites in and around Brisbane. Workers of small teams are assigned specific jobs at each site.
7. Michael John Rees (REES) is the sole director of the defendant.
8. The defendant's primary undertaking is that of providing roofing contractor services.
9. The defendant employs a number of workers including WALKER, who was employed as an Assistant Roof Plumber at the time of the incident.
10. WALKER had been employed by the defendant for approximately 3 years prior to the incident.
11. WALKER's normal duties involved removing and replacing roof sheeting, flashings and gutters as well as helping out in the office with quotations, estimates, ordering and marketing.
Facts
12. On the day of the incident WALKER was working with a foreman employed by the defendant and another Trades Assistant to replace an asbestos roof upon a storage shed with a new colour bond roof. The shed was located a short distance away from the main dwelling on site, but on the same residential property block.
13. A large vine that had been growing over the roof of the shed had to be removed prior to work commencing. The vine which covered the roof had made the original asbestos roof slippery under foot.
14. After the vine and asbestos roof were removed, extra battens needed to be inserted into the rafters to accommodate the new roof. The shed did not have a ceiling and the concrete floor below was exposed.
15. Whilst undertaking this task, the defendant's workers walked across the rafters.
16. Whilst WALKER was cutting a batten at one end of the shed where the roof had been removed, he lost his balance and fell to the concrete floor below. In doing so he narrowly missed impaling himself of an upright and exposed star picket.
17. The height of the roof was measured as being 2.8 metres from the lower gutter of the roof to the ground and 3.4 metres from the top of the gable down to the ground. The rafter where WALKER fell measured approximately 3.1 metres from ground level.
18. As a result of the fall WALKER sustained injuries which included:
· A fractured skull with bleeding between the side of the skull and the lining over the brain and bleeding between the brain and the tissues that cover it.
· bruising of the brain,
· cranial nerve damage and
· complete hearing loss in the right ear
19. His injuries constituted grievous bodily harm.
20. The investigation revealed the following:
· Both the foreman and Trades Assistant were also standing on the exposed roof with WALKER at the time of the fall.
· There was no fall protection in place at the time to prevent WALKER or the other workers falling from or through the roof.
· WALKER states that on the morning prior to the job, the foreman, Aaron DAVIES (DAVIES), told him and the apprentice to be careful due to the moisture left by the vine over the roof.
· DAVIES stated that he was told by REES, to instruct the workers to be careful on the roof due to the wet conditions, however, he was not given a Work Method Statement prior to this particular job as he would normally be given. He stated that this was due to the job being a small one-day job.
· DAVIES further stated that REES attended at the site after the incident and provided him with a Work Method Statement.
Other Matters
21. The defendant cooperated with the investigating agency, but declined an invitation to participate in a Record of Interview.
22. The defendant has no previous convictions under the Act.".
It is desirable to make some comment about the Agreed Statement of facts. First, it is now common ground that the project at Howlett Road, Capalaba was high risk construction work for the purposes of the Act. It follows from s. 26 of the Act that the obligation at s. 28 might be discharged only by observing the Regulation. The Regulation requires development of the Work Method Statement referred to at paragraph 20 of the Agreed Statement of Facts. Second, there is not an agreement as to the significance of Mr Davies reference to the absence of the Work Method Statement being attributable to the size of the job (see paragraph 20). On a criminal appeal, it seems to me that I should adopt the benign view that the Work Method Statement was not developed because it was relatively easy to determine a safe method of work. Third, whilst the photographs tendered at first instance show a star picket (see paragraph 16), the photographs do not show the star picket to have been in the vicinity of the fall. Again, this being a criminal appeal, I shall deal with the matter on the basis that the picket was not in the vicinity of the fall.
As to mitigation it may be accepted that there was a timely plea of guilty and cooperation with the investigation by a first offender who was otherwise a good corporate citizen.
The Industrial Magistrate declined to record a conviction; imposed a fine of $35,000; ordered the defendant to pay investigation costs in the sum of $1,132.51; costs of court in the sum of $71.70; and allowed the defendant twelve months to pay. This is an appeal limited to the quantum of the fine imposed.
Counsel for the Appellant takes as a starting point the observations of this Court in Waltham v Transfield Services (Australia) Pty Ltd (2007) 184 QGIG 179 at 182;
"Going to the precedents, there is the usual difficulty arising from the (happy) circumstance that breaches of the Workplace Health and Safety Act 1995, causing a circumstance of aggravation are not frequent. More often than not an attempt to develop a tariff will fail. One will have a small number of decisions each of which deals with singular fact situations, quite different mitigating circumstances and only the ultimate post-mitigation fine. Often, all that may be derived are signposts along the way to the appropriate sentence. However, in the case of lower level grievous bodily harm injuries, there is a cluster of cases with similar elements of blame and similar mitigating features, which fall in a range of $30,000 to $40,000, compare Brian Marfleet v Lindsay Meyers Pty Ltd (2006) 183 QGIG 240. The cases constituting the cluster are usually said to be Rigby Hughes v Hessey Pty Ltd (2005) 180 QGIG 294 ($30,000), Lowe v BBC Hardware Limted (2006) 182 QGIG 204, Marfleet v Lindsay Meyers Pty Ltd (2006) 183 QGIG 240 ($35,000). Prior to the last increase in the maximum fine available there was a comparable cluster consisting of Newman v JBL Applicators Pty Ltd (2003) 172 QGIG 1096 ($27,500), Geraty v Friendly Sofa Designs Pty Ltd (2003) 173 QGIG 10 ($25,000), Neilands v CMC Cairns Ltd (2001) 168 QGIG 132 ($22,500) and Wesche v NQ Blasting and Coating Pty Ltd (2003) 174 QGIG 1223 ($25,000). Without seeking to subordinate the complexity of discretionary judgement to arithmetic, if each of the four fines last mentioned is adjusted in the same way as the maximum penalty, the fine would fall within the range of $30,000 to $40,000. The fine of $18,000 was manifestly inadequate.".
The submission is that in this case the injuries were more severe. I am not disposed to accept that submission.
Thankfully, WorkCover has long since cleared Mr Walker to return to work. Regrettably, he will forever suffer from a significant hearing disability. However, all of the cases in the cluster involve grievous bodily harm. In many cases a disability continued into the future. I quite accept that in taking into account the circumstance of aggravation at s. 24 one is not confined to the permanent injury and may look at the immediate impact of the mishap on the body of the victim. Here, Mr Walker's initial injuries might fairly be characterised as potentially life threatening. However, falls from heights are inherently life-threatening. That consideration would be taken into account on the issue of gravity/blame-worthiness even if injury had not ensued. One must be careful not to weigh the same factor on more than one occasion.
It is then contended that the situation in this case is more analogous to Waltham v Cairns Synergy Electrical Pty Ltd (2007) 185 QGIG 40. Again I am unable to accept the submission. In that case the height of the roof was five metres. In that case (an admittedly experienced) workman had been given no formal instruction or training by the respondent about the performance of work at a height, had no received no formal induction and was not provided with any safety equipment additional to a ladder. Even planks, which would have been of assistance, were not provided. Here, in the course of submissions, the solicitor for the defendant at first instance departed from the agreed statement of facts to assert that risk assessments had been completed and work method statements prepared "for all other jobs in the past". If one additionally reads the agreed statement of facts in the beneficial sense explained above, it seems to me that this case is not comparable to Waltham v Cairns Synergy Electrical Pty Ltd ibid, and falls within the cluster.
The Industrial Magistrate's decision to adopt a sentencing point at or about the midpoint of the cluster seems to me to be entirely unexceptional. Absent any error of law or of principle this Court will interfere with a sentencing Industrial Magistrate's exercise of discretion only where the fine imposed is manifestly inadequate or manifestly excessive.
I dismiss the Appeal. I reserve all questions as to costs.
Dated 7 May 2009.
D.R. HALL, President.Released: 7 May 2009 / Appearances:
Ms V. McKenzie of Legal and Prosecution Services, Workplace Health and Safety, for the Appellant.
Mr J. McPherson of MVM Legal, Solicitors for the Respondent.
Government Printer, Queensland
ÓThe State of Queensland 2009.