Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350

Industrial Court of New South Wales

CITATION: Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350

APPELLANT: Inspector Gary Mason PARTIES: RESPONDENT: Wild Geese Building and Maintenance Group Pty Ltd

FILE NUMBER(S): IRC 2513 of 2006

CORAM: Wright J President; Walton J Vice-President; Schmidt J

CATCHWORDS: Appeal - Occupational health and safety - Appeal from fine imposed at first instance - Fine alleged to be manifestly inadequate - Seriousness of offence - Serious injury suffered - Potential for more serious situation to occur - Work performed inherently dangerous - Foreseeability of risk - Fall from roof of building onto concrete floor below - Absence of fall protection - Difficulties in comparing penalties under the OH&S Act - Approach to be adopted in re-sentencing on appeal - Costs.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 s 5D Industrial Relations Act 1996 s 196 Occupational Health and Safety Act 2000 s 8 s 12

Dinsdale v The Queen (2000) 202 CLR 321 Inspector Dubois v Masters Civil Pty Ltd and Anor [2006] NSWIRComm 180 Inspector Glass v B T Engineering Pty Ltd as Trustee of the Bruce Thomas Family Trust [2004] NSWIRComm 245 Inspector Green v Camilleri Properties Pty Ltd and Anor [2006] NSWIRComm 90 Inspector Guillarte v Trustees of De La Salle Brothers [2004] NSWIRComm 49 Inspector Jones v Chalita and Anor [2006] NSWIRComm 207 CASES CITED: Inspector Mason v Wild Geese Building & Maintenance Pty Ltd [2006] NSWIRComm 152 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1990) 90 IR 464 Masters Civil Pty Limited v Inspector Dubois [2006] NSWIRComm 332 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 WorkCover Authority of New South Wales (Insp Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 WorkCover Authority of New South Wales (Insp Hopkins) v Red Lea Chickens Pty Ltd and Magg Transport and Packing Pty Limited [2003] NSWIRComm 71 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163

HEARING DATES: 03/11/2006 EXTEMPORE JUDGMENT DATE: 11/03/2006

APPELLANT: Mr D O'Neil of counsel Phillips Fox, Solicitors (Mr P Thompson) LEGAL REPRESENTATIVES:

RESPONDENT: Ms W G Thompson of counsel Doyle Wilson, Solicitors (Mr L Wilson)

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President SCHMIDT J

Friday 3 November 2006

Matter No IRC 2513 of 2006

INSPECTOR GARY MASON v WILD GEESE BUILDING AND MAINTENANCE GROUP PTY LTD

Appeal by WorkCover Authority of New South Wales from a judgment of Justice Kavanagh given on 25 May 2006 in Matter No IRC 6332 of 2005

JUDGMENT OF THE COURT [2006] NSWIRComm 350 (extempore)

1 This is an appeal pursuant to s 196 of the Industrial Relations Act 1996 and s 5D of the Criminal Appeal Act 1912 from a judgment given by her Honour Justice Kavanagh on 25 May 2006 (Inspector Mason v Wild Geese Building & Maintenance Pty Ltd [2006] NSWIRComm 152). The defendant had pleaded guilty to a charge brought under s 8 of the Occupational Health and Safety Act 2000. The offence occurred on 17 February 2005 at premises at Boggabilla, when one of the defendant's employees, Mr Ivan McIntosh, was seriously injured when he fell through the roof of a shed, where he had been cleaning guttering. 2 Her Honour found the offence proven and imposed a penalty of $25,000 for the offence which had a maximum penalty of $550,000, as the defendant's first offence (see s 12 of the Occupational Health and Safety Act). The Inspector has appealed her Honour's judgment, on the basis of the manifest inadequacy of the penalty imposed; the objective seriousness of the offence and her Honour's failure to apply the applicable sentencing principles. It was the appellant's case that her Honour had given undue and unreasonable weight to subjective matters in mitigation of the offence and had failed to give sufficient weight to objective factors. 3 Kavanagh J's judgment records at [2] that the offence to which the plea was entered was: On 17 February 2005 at approximately 1:00pm at the premises (85 Simpson Street, Boggabilla), in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of its employees, including Ivan McIntosh ( injured worker ), in that whilst the injured worker was on the roof of a shed ( shed ) at the premises for the purpose of cleaning its guttering, he stepped on a skylight panel in the roof of the shed which gave way causing him to fall a distance of approximately 7.5m onto the concrete floor of the shed below and sustain serious injuries including a fractured skull, broken forearm and knee injuries by reason that:

1. The Defendant failed to ensure that systems of work were safe and without risks to health in that: 1.1 It failed to provide a safe means of access to the gutters and roof of the shed;

1.2 It failed to provide the injured worker with fall protection whilst accessing the guttering and roof of the shed; and

1.3 It failed to conduct a risk assessment in relation to the task of cleaning the guttering of the shed.

2. The Defendant failed to provide such information, instruction, training and supervision as may be necessary to ensure the injured workers' health and safety at work in relation to the task of cleaning the guttering of the shed. 4 At [4], her Honour referred to the agreed statement of facts, which provided: 2. The Defendant conducted its business of building maintenance from 85 Simpson Street, Boggabilla in the State of New South Wales ( premises ).

3. At all material times the Defendant: 3.1 was engaged in the business of housing construction and maintenance;

3.2 employed Ivan McIntosh ( injured worker ), 38 years of age, as a housing maintenance/carpenter at the premises;

3.3 employed Wayne Ronald Lavender ( Lavender ) as a Supervisor at the premises;

3.4 was the occupier of the premises, which included a metal clad storage shed measuring 28m x 16m ( shed ) and utilised the premises as a place of work; 3.5 owned a 6m aluminium extension ladder; and 3.6 in the course of its undertaking, made available the 6m extension ladder to be utilised by its employees in carrying out various duties. 4. At all material times Lavender was a director, secretary and person concerned in the management of the Defendant.

5. On 17 February 2005 ( day of the incident ), Lavender directed the injured worker to clean the guttering of the shed. The guttering needed to be cleaned to provide a clean source of water to a water tank that had just been installed adjacent to the shed. There was some urgency to clean the gutters due to an approaching storm.

7. Lavender directed the injured worker to use the 6.0m aluminium extension to access the guttering and told him to use a cement trowel to clean out the guttering.

8. The injured worker was unable to find the cement trowel recommended by Lavender and according to the injured worker Lavender gave him a 1.5 inch putty knife instead.

9. The injured worker experienced difficulty in cleaning the gutter with the putty knife due as the gutters were too full and compacted to be cleaned with the putty knife and decided to look for a better tool with which to clean out the gutters.

10. The injured worker recalled that the company owned portable high-pressure water cleaner which might have been more suitable for the job.

11. The injured worker then took the water pressure cleaner on to the roof of the shed using the 6m extension ladder that was positioned beside a water tank adjacent to the storage shed.

12. Once on the roof, the injured worker, in an attempt to free up a length of hose that had become caught up, walked up and over the ridge of the roof to the edge on the other side of the roof where he freed the hose.

13. At approximately 1.00pm on the day of the incident whilst walking back to the pressure cleaner, on the other side of the roof, the injured worker stepped onto and fell through a fibreglass skylight on the roof, falling approximately 7.5m onto the concrete floor beneath.

14. As a result of the incident the injured worker suffered a fractured skull causing nerve damage to his right eye and resulting in double and blurred vision, nerve damage to his right knee and shattering of bones in his left forearm and wrist, requiring bone and skin grafts and the insertion of two steel pins. The injured worker remained hospitalised for approximately 6 weeks until 2 April 2005. 14.1 The fibreglass skylight was not load bearing and was not capable of supporting the weight of the injured worker. There was no safety mesh installed underneath the fibreglass skylight. 15. On 18 February 2005, I attended the premises and observed as follows: 15.1 The Wild Geese Building & Maintenance Group QLD/NSW Pty Ltd depot was situated on the corner of the Newell Highway and Simpson Street. The premises measures 50m x 40m with the longest dimension being in an East West direction. A 1.8m high chain wire mesh fence secured the perimeter of the premises, with an access gate situated on the southern side.

15.2 The western third of the premises was unsealed and vacant. A large metal clad shed was situated in the eastern two thirds of the premises with a 3m x 10m demountable office and a 2.4m x 2m demountable toilet situated at the western end of the shed.

15.3 The shed was steel frame construction with a gabled roof, both the roof and walls were clad with corrugated colour bond metal sheeting except for the East wall which was of Besser brick construction up to the gable section of the roof. The floor of the shed was concrete.

15.4 The shed measured 28m x 16m with the longer side running in an East West direction. The wall height was 5m with the peak of the roof being approximately 8m. There were two 2.5m hinged doors on the North and South walls situated 15m from the West end of the building. The South side doors were fully open, the northern doors were closed with a small access door hinged open. Metal box roof gutters were attached to the north and south wall. There was also a 6.5m x 2,8m access in the centre of the West wall. The access had a 2.8m x 6.5m skillion sheltering the access.

15.5 There was a plastic water tank positioned outside of the northwest corner of the shed. The tank had the following inscription 'Rapidplas RT2200'. The tank's dimensions were 1.35m # x 1.96m high. The tank was mounted on a 1.4m x 1.4m timber deck. The total hight (sic) of the tank and deck was 3.28m. A downpipe was leading from the box gutter to the tank. A metal strap was secured around the tank 3.22m high. The strap was secured to the north and west walls of the shed. There was a Toyota Utility QLD Registration 346 FWV parked adjacent to the water tank.

15.6 A 6m aluminium extension ladder was positioned approximately 1m to the east of the water tank structure. The ladder was identified by the following Bailey Industrial Tradesperson 120kg. The top of the ladder was leaning against the box gutter with 200mm of the stiles protruding above the gutter. The base of the ladder was placed 1.85m from the shed wall. The ladder was not secured.

15.7 A yellow high-pressure water cleaner was situated on the roof and positioned 15m from the west and 3m from the north edges of the shed. An electrical extension cord led down from the high pressure water cleaner to ground level where it led through a small door in the north wall of the shed to a power outlet within the shed. A 12mm garden hose led from a tap on the southeast corner of the shed up to the roof and was connected to the high-pressure water cleaner.

15.8 Five skylights were attached to the roof of the shed. The skylights were situated approximately 5.5m apart and measured 1200mm x 800mm.The skylights were attached to the roof via tech screws and were positioned on the north side of the roof with the 800mm side adjacent to the roof apex. The skylights were of an opaque fibreglass corrugated structure.

15.9 Observations from the outside of the building revealed that the fourth skylight from the west end of the building did not have fibreglass material completely covering the 1200mm x 800mm opening.

15.10 Observations from the inside of the shed revealed that the fourth skylight from the west end was damaged. On the northern side of the skylight a 600mm section was broken away from the fibreglass sheet while still attached to the sheet it was hanging in a vertical direction leaving an opening measuring approximately 500mm x 600mm.The panel appeared as if an object had broken through it.

15.11 A 1-metre radius of concrete floor directly below the above mentioned damaged fibreglass panel had several pools of dried blood. There was a pink electric extension cord adjacent to the dried blood leading from a power outlet to the high-pressure water cleaner situated on the roof.

16. At the time of the incident: 16.1 The Defendant had employed the injured worker for approximately 3 weeks.

16.2 Lavender was the injured worker's supervisor at the time of the incident.

16.3 The injured worker was unsupervised at the time of the incident.

16.4 The injured worker had not received training in relation to working safely at heights and in particular in relation to the use of ladders.

16.5 The defendant failed to ensure that the ladder was adequately secured whilst the injured worker was accessing the guttering.

16.6 The injured worker was not provided with any fall protection whilst accessing the guttering or whilst on the roof of the shed.

16.7 The Defendant did not conduct a risk assessment in relation to the task of cleaning the guttering of the shed.

16.8 The Defendant did not have a safe work method statement for cleaning the guttering of the shed.

17. WorkCover Code of Practice – Safe Work on Roofs, Part 1 – Commercial and Industrial Buildings includes, inter alia, the following guidelines for working safely on roofs:

17.1 Paragraph 2 – Planning and preparation – The first step in ensuring that work is done safely is to plan and prepare for it so it can be dome (sic) safely. Planning and preparation should involve consultation with all engaged in the work including employee representation.

17.2 Paragraph 3.1 – Prevention of falls – Provision should be made to prevent persons falling if work is to be carried out within two metres of any edge on a new or existing roof from which any person could fall two metres or more.

The recommended method is safety mesh and guard rails. Other available methods include industrial fall arrest systems, scaffolding, safety nets or a combination of these methods. These methods should only be used if the recommended method cannot be used. Notices issued

18. On 18 February 2005, two Improvement Notices were issued to the Defendant.

Steps taken following the incident

19. Since the incident, the Defendant has implemented the following safety controls: 19.1 Implemented a Safe Work Method Statement titled 'Repair Roof of Workshop 85 Simpson St. Boggabilla NSW' which provides that a ladder is to be placed against the building using a ladder bracket and for harnesses to be used to protect employees against falling when working from heights.

19.2 Carried out a risk assessment on all sites, including the shed which the injured worker was working on, which identified a medium to high level of risk of falls when working at heights and identified appropriate methods of control including installation of edge protection, requiring harnesses to be worn, trestles to be used and proper ladders.

19.3 Conducted a training course on scaffold erection on all sites and provided a refresher course on OH&S working on roofs and at heights.

20. The Defendant cooperated with the WorkCover Authority. 5 Kavanagh J approached the question of sentencing in the light of the relevant provisions of the Crimes (Sentencing Procedure) Act 1999. At [12], in considering the objective seriousness of the offence, her Honour noted that: [A] number of particular features must be addressed. The defendant was incorporated as part of a project commenced by Patrick Joseph Hewitt to undertake building and construction work in Aboriginal communities and to provide, through the defendant, training opportunities in the building and construction industry as well as ongoing employment opportunities for indigenous workers. 6 Her Honour noted the circumstances in which the risk to safety came to materialise; the gravity of the injuries which Mr McIntosh had suffered; the prosecutor's submission that it was foreseeable that the injured worker might access the roof while cleaning the gutters; and the need for an employer to ensure that instructions as to how a job should be done are followed. 7 Her Honour then went on to consider the question of causation. At [24], her Honour observed that the particulars of the charge as to 'the unsafe system of work allegation are the failure to provide a safe means of access to the gutters and roof; no fall protection while accessing roof and gutters; no risk assessment of the task. The second particular asserted a failure to inform, instruct, train and supervise for safe working the allocated task of cleaning the gutters.' 8 Her Honour concluded that: [25] I am of the view the charge, when read with the pleadings, does not allow for a consideration of any failures related to the condition of the roof including the skylights therein as the prosecution submitted. While the condition of the roof and skylights may have made a contribution to the risk they were not causative of the risk which was pleaded. If the prosecutor wishes to so submit it should have amended the particulars. While a systems charge under s8(1) is an all encompassing charge under which there is recited in the Act an extensive range of duties "without limitation" nonetheless the particulars of a charge detail the acts of the defendant which are relied upon by the prosecution to establish the breach of the act on the relevant date. Neither the state of the roof and skylights nor acts of the defendant related to the condition of the roof or skylights were particularised as acts having a causal connection to the asserted risk. Details related to the state of the roof and skylights have been placed before me through the Agreed Statement of Facts. They are of relevance only to establish the context in which the breach occurred. They were not relied upon as particulars of the breach. The risk as pleaded was therefore allowing an unsupervised, not properly instructed, employee unsafe access to a roof. That risk did not lead to the injury suffered but the potential risk was still most serious. The acts of omission were not providing an employee with a secured ladder, not providing him with fall protection equipment and not properly instructing him so he could successfully perform the task.

[26] The employee was given instruction as to how to perform the task. Those instructions were not effective for the employee to successfully perform the work. It was at this point the failure to supervise becomes relevant. The employee re-designed the work method. I accept it was foreseeable that an employee who was instructed to clear blocked gutters at roof height could seek access to the roof to perform his task. It was also foreseeable that an employee unsupervised and instructed with a work method that did not succeed would seek out another way to perform the task. Such a circumstance while establishing there was the failure to supervise also establishes it was foreseeable that the employee would seek access to the roof to perform an alternative work method. I therefore accept the failure to provide safe access to the roof was an act of the defendant with a causal connection to the risk.

[27] The identified risk is therefore not the risk of falling through the skylight but the risk created by leaving an unsupervised employee without the correct equipment to perform a task without a risk assessment as to safe working and without safe access or fall protection.

[28] I therefore reject the prosecution's submission that the identified risk should include "risks associated with the skylights". Such a consideration would require the Court to reason from the injury and the fall rather than the pleaded risk to safety, namely, the foreseeable risk to safety in an unsupervised employee having unsafe access to a roof to perform a task in circumstances where there was a failure to provide a safe work method. I am satisfied this was a serious breach of the Act. 9 Kavanagh J considered the question of deterrence and then went on to consider subjective matters relevant to the penalty to be imposed. These included the safety systems in place at the time of the incident; the steps taken to implement them, with the engagement of an external consultant and a project manager; the defendant's operations and the significant contribution which it makes to the community through the employment of members of the aboriginal community; the steps taken after the incident to review its safety procedures; its co-operation with the prosecutor and the evidence as to its size and structure, as well as the effect of any fine imposed. As to the latter, her Honour concluded that: [38] Even though the defendant is incorporated I accept it is an individually run business incorporated purely for the convenience of book-keeping and taxation arrangements. However, the defendant receives a financial benefit from that arrangement. The financial status of the defendant has been tendered. Ms Thomson submitted neither Mr Hewitt nor the defendant possess assets that would allow the payment of a substantial penalty without Mr Hewitt personally incurring great personal hardship. The Profit and Loss statement for the period ending 30 June 2005 reveals the defendant posted a profit of approximately $100,000, but that it also had a turnover of $5 million. I do not accept the defendant cannot meet any penalty imposed. 10 Her Honour allowed a 25 per cent discount for the utilitarian value of the early plea and imposed a penalty of $25,000, with a moiety to the prosecutor. The cases advanced 11 The appellant's case was that a penalty of $25,000 for this offence was manifestly inadequate on the evidence, which demonstrated that the risk in question was serious and foreseeable; that there was a causal connection between the relevant failures and the risk to safety and that there was no incapacity in the respondent paying a fine. 12 It was submitted that the appeal should be upheld, even where there was no significant issue of principle raised, given the extremely low penalty imposed in a scheme which provided for a maximum penalty of $550,000 for this offence. It was accepted that the appeal had to be approached with caution and that clear and demonstrable error had to be demonstrated. 13 It was argued however, that her Honour had fallen into error on the question of causation and that had led her to fail to have proper regard to the agreed facts, which showed that the respondent had failed to provide or maintain a safe system for accessing the roof for the purpose of cleaning the gutters of the shed. The task was inherently dangerous and the risk of falling which materialised reasonably foreseeable. It was also submitted that the failure to take feasible and available steps to eliminate or minimise the risk, had not been properly taken into account, in determining penalty. 14 While finding the offence serious, a penalty at the lowest end of the scale was imposed, which did not reflect the objective seriousness of the offence, or the respondent's culpability for the risk which materialised. The gravity of the potential risk was high; it was reasonably foreseeable, given the inherently dangerous nature of the work undertaken; appropriate, feasible and available means to preclude the risk were not taken and the result was very serious injury, as was also foreseeable. 15 It was submitted that there was a significant public interest in compelling attention to safety obligations, in the case of companies who employ and train young people, as was the case here. The subjective matters taken into account ranked in importance behind the objective features of the offence. 16 It was submitted that it followed that her Honour had failed to apply the sentencing principles which bound her, by failing to adequately identify the objective features of the offence, relevant to the penalty imposed. Her Honour also fell into error in finding that the risk pleaded was not the risk which materialised and so failed properly to take into account relevant matters in the agreed statement of facts. An inapropriate distinction was drawn between facts and particulars. Her Honour erred in rejecting the appellants submission that the identified risk should include the 'risk associated with the skylights'. On the evidence, the risks associated with the skylight, were relevant to be taken into account on sentence. Her Honour failed to have adequate regard to the maximum penalty for the offence and to the simple remedial steps available, which would have prevented the risk materialising. 17 The respondent's case was that the appeal should be dismissed. No error of law, fact or principle was established and the penalty imposed was not manifestly inadequate, as the appellant claimed. The penalty was within the available range, on the evidence. 18 Her Honour's judgment made clear that she had applied the relevant sentencing principles to the factors identified and taken into account in assessing the objective seriousness of the offence. Her Honour also had regard to the nature of the risk in question and causative factors. While she rejected the condition of the roof and skylight as 'causative' of the risk, Kavanagh J nevertheless accepted that they contributed to the accident. This approach reflected the matters argued before her Honour and did not constitute any error in the application of sentencing principles. 19 Her Honour concluded that the offence was a 'serious breach' in a context where the defendant had assumed responsibility for establishing safe work practices for those who were working in the building industry. Her Honour applied specific and general deterrence in the context of that industry, having regard to the size and nature of the business which the respondent operated. It followed that no error of identification of objective factors was apparent in her Honour's judgment. 20 As to errors in relation to the particulars of the charge, it was submitted that at the hearing the appellant had submitted that the obligations imposed on the respondent extended to 'risks arising from the injured workers seeking and obtaining access to the roof of the shed, including risk associated with skylights'. These risks were argued to be serious and foreseeable. The respondent's case relied on the characterisation of the risk pleaded and the distinction between the foreseeability of those risks and the risk which arose when Mr McIntosh departed from his set task, which gave rise to risks associated with unsupported skylights. 21 Given the charge to which the plea was entered, it followed that her Honour was correct to conclude that the condition of the roof and skylights were relevant in establishing the context in which the breach had occurred, but could not be relied on as a particular of the breach. The prosecutor had accepted in its submissions that access to the roof was no part of the system of work which the respondent had proposed. The work was to be done from a ladder. It followed that her Honour's conclusions as to these matters contained no error and that her Honour was correct to reject the submission advanced, that risks of gaining access to the roof and those associated with the skylights, were relevant. 22 It was also argued that the appellant's submissions invited the Court to reason from the injury sustained by Mr McIntosh, rather than from the risk to which the plea was entered. In assessing that risk, Her Honour concluded that it was foreseeable that an unsupervised employee, instructed to clean the gutter by a work method which did not succeed, would seek out another method, and so it was foreseeable that access to the roof would be pursued. 23 It followed that the submission that there had been a failure to have proper regard to the objective features of the offence could not be sustained and that no error of principle could be identified in her Honour's approach. Great caution had to be exercised in considering a penalty imposed at first instance. Here no error of law or fact appeared and the penalty imposed was an available one, although falling within the low end of the range. Consideration

24 On the evidence in this case there can be no doubt that her Honour's conclusion that the offence in question was a serious one, was correct. It is in that context that the question of whether the penalty imposed was manifestly inadequate, given the applicable sentencing principles, the evidence and the maximum penalty imposed by the Act for a first offence such as this, arises for consideration. 25 For reasons which we will explain, in our view this is a case where the sentence imposed at first instance was so manifestly inadequate, as to warrant correction on appeal. 26 It is unarguable that a penalty of $25,000 for a serious first offence of this kind, is extremely low, given the $550,000 maximum penalty for the offence. The evidence and her Honour's judgment showed that the risk which materialised was the risk of serious injury or death, resulting from a fall of some 7.5m from a roof to which the employee had gained access, while working unsupervised and without fall protection equipment, while attempting to clean the gutters of a shed. It was obvious on the evidence that Mr McIntosh was fortunate that he suffered only serious injuries. That was the result of good luck, not good safety management, on the defendant's part. 27 The risk which materialised was obviously foreseeable. The work Mr McIntosh had been given to do was inherently dangerous. He was instructed to clean the guttering of the shed, using a six metre extension ladder. The instructions given were inadequate for the work required to be done. The work was not supervised, even though Mr McIntosh had been working for the defendant for only three weeks. There was time pressure, given the impending arrival of bad weather. The cleaning was being done so that water could be fed from the roof of the shed into a newly installed water tank. As her Honour found and as the defendant accepted by its plea, it was entirely foreseeable in those circumstances that Mr McIntosh would try to perform the work in some other way. He climbed onto the roof, which contained fibreglass skylights and then fell to the ground below, when he stepped onto one of the skylights. The skylight could not support his weight. He fell because he had not been provided with fall protection equipment. 28 In the agreed statement of facts it was accepted that Mr McIntosh was not properly instructed in how to undertake the work safely, nor was he supervised. He was not provided with fall protection equipment, either while using the six metre extension ladder, or when he gained access to the roof. The necessity for such equipment was obvious, given the ladder used to gain access to the roof, the height of the roof and the fact of the skylights located there. Plainly, there was a serious risk of injury, if Mr McIntosh stepped onto and fell through one of the skylights, just as there was a similar risk of injury, if he slipped and fell off the roof, or off the ladder. 29 The charge to which the plea was entered included that the defendant : failed to ensure the health, safety and welfare at work of its employees, including Ivan McIntosh ( injured worker ), in that whilst the injured worker was on the roof of a shed ( shed ) at the premises for the purpose of cleaning its guttering, he stepped on a skylight panel in the roof of the shed which gave way causing him to fall a distance of approximately 7.5m onto the concrete floor of the shed below 30 The particulars of the charge included that the defendant failed to 'provide a safe means of access to the gutters and roof of the shed' and that it 'failed to provide the injured worker with fall protection whilst accessing the guttering and roof of the shed'. 31 Her Honour's conclusion was that neither the state of the roof and skylights, nor the acts of the defendant relating to the condition of the roof or skylights, were particularised as acts having a causal connection to the asserted risk. She also concluded that the state of the roof and the skylights were 'of relevance only to establish the context in which the breach occurred. They were not relied upon as particulars of the breach.' Having so found, her Honour went on to conclude at [25] that:

The risk as pleaded was therefore allowing an unsupervised, not properly instructed, employee unsafe access to a roof. That risk did not lead to the injury suffered but the potential risk was still most serious. The acts of omission were not providing an employee with a secured ladder, not providing him with fall protection equipment and not properly instructing him so he could successfully perform the task 32 On the evidence it was apparent that the immediate cause of the risk to which Mr McIntosh was exposed materialising, was the defendant's failure to provide fall protection equipment. Of all of the defendant's failures, that was the most serious. If such equipment had been used, a fall would have been prevented. 33 The charge to which the plea was entered referred to Mr McIntosh stepping 'on a skylight panel in the roof of the shed which gave way causing him to fall a distance of approximately 7.5m onto the concrete floor of the shed below'. The particulars referred to the failure to 'provide the injured worker with fall protection whilst accessing the guttering and roof of the shed'. That formulation of the charge explains why the agreed statement of facts referred to the skylights on the roof being made of fibreglass, through which someone was likely to fall, if they stepped onto it. 34 The charge was not only concerned with unsafe access to the roof and a failure to provide a safe work method statement, but also with the defendant's failure to provide the fall protection equipment essential to ensure that the work required could be performed safely. Those failures arise for consideration in a factual matrix where the absence of fall protection equipment permitted Mr McIntosh to fall from the roof, sustaining very serious injuries as a result, as was entirely foreseeable. It follows that her Honour's analysis of risk and causation, was not properly open in the circumstances of this plea. 35 It is in this context that the extremely low penalty imposed by her Honour must be considered. It was Mr McIntosh accessing the roof, while not protected by fall protection equipment, which enabled him to fall. Had he not gained such access, the risk of falling from the roof which was eight metres at its peak, would plainly not have arisen. The risk of falling from the six metre, unsecured ladder, while cleaning gutters five metres off the ground would have arisen, as the defendant accepted in its submissions below. On the evidence, even the six metre ladder was inadequate to provide safe access to this roof. If Mr McIntosh had been provided with fall protection equipment, he would clearly have been protected from any risk of falling materialising. 36 Her Honour found the offence to be a serious one, but nevertheless imposed a low penalty. The penalty was arrived at by applying a reduction of 25 per cent for utilitarian savings flowing from the early entry of the plea. Her Honour also referred to the subjective matters relevant to the assessment of penalty. As the High Court's approach in Markarian v R (2005) 215 ALR 213 required, her Honour did not identify what further discount she gave the defendant for such factors, referring as she was bound to do to the 'instinctive synthesis' approach to sentencing, which the High Court discussed in Markarian at [32]. 37 Nevertheless, it is plain that if her Honour had discounted the penalty imposed by a total of even as high as 50 per cent, an approach not suggested by her Honour's judgment, the penalty for this offence would still have been low, given this statutory scheme. Given her Honour's reasoning and the amount of the penalty imposed, the only explanation for the amount arrived at, can have been a failure to pay adequate regard to the evidence as to the objective features of this offence. 38 Nothing in her Honour's judgment explains how this very serious offence resulted in a penalty of less than five per cent of the maximum available. While the appellant argued that the explanation must be that too much weight was given to subjective matters, that is not apparent from her Honour's judgment. We consider that there are real difficulties in comparing penalties imposed under the Occupational Health and Safety Act, even in cases where there is an essential common feature, such as a falling incident, crushing incident etc, because of the myriad of differing surrounding factual circumstances in the cases. Nevertheless, while we do not foreclose the outcome in any particular case, we find it difficult to conceive of any case involving a fall of over five metres, in the absence of any fall protection equipment, which results in serious injury or the potential for such injury, where a fine of the present magnitude could properly be the result (see, for example, Inspector Guillarte v Trustees of De La Salle Brothers [2004] NSWIRComm 49; WorkCover Authority of New South Wales (Insp Hopkins) v Red Lea Chickens Pty Ltd and Magg Transport and Packing Pty Limited [2003] NSWIRComm 71; Inspector Glass v B T Engineering Pty Ltd as Trustee of the Bruce Thomas Family Trust [2004] NSWIRComm 245; and Inspector Dubois v Masters Civil Pty Ltd and Anor [2006] NSWIRComm 180 - only the last of which was the subject of an appeal (which was unsuccessful: Masters Civil Pty Limited v Inspector Dubois [2006] NSWIRComm 332)) 39 We are satisfied that her Honour erred in the penalty imposed. The risk in question was a most serious one. The work required to be done was inherently dangerous. The risk was plainly foreseeable and could easily have been entirely precluded by the provision of fall protection equipment. We are satisfied that the penalty imposed does not reflect the gravity of this offence when viewed objectively, so that it must be concluded that it was manifestly inadequate. The inference which may be drawn from those conclusions is that there has been a failure to properly exercise the sentencing discretion at first instance: see Dinsdale v The Queen (2000) 202 CLR 321 at 340 and WorkCover Authority of New South Wales (Insp Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 at 73 - 74. 40 It follows that the appeal must be upheld and that the appeal bench must re-sentence the respondent. 41 It has often been observed that the objective seriousness of an offence must be reflected in the penalty imposed. In Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1990) 90 IR 464, the Full Bench said at 474 - 475: The proper approach involves initially considering the gravity of the offence viewed objectively with the court ensuring that the allowance for subjective factors does not produce a sentence which fails to take into account the objective gravity of the offence.

The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety.

See also Carpal Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383; WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163. 42 Consistently with the approach discussed in Inspector Jones v Chalita and Anor [2006] NSWIRComm 207 at [27] - [29], re-sentencing in circumstances such as the present must nevertheless be approached with caution: [27] Nevertheless prosecution appeals which rely on the contention that the sentence is manifestly inadequate in the absence of specific errors as the foundation for that conclusion, should be approached with great caution by appellate courts in deciding whether to interfere with the sentencing discretion at first instance.

[28] This observation (which is uncontroversial and well-known) finds support in a number of authorities. For present purposes we will refer briefly to two such authorities. The first is R v Hallocoglu (1992) 29 NSWLR 67 where Hunt CJ at CL (with whom Grove and Sharpe JJ agreed) observed (at 78): A Crown appeal against inadequacy will not usually be allowed unless the judge has acted upon a wrong principle or upon a misunderstanding or a wrong assessment of the evidence. Such an error may be demonstrated by the sentence itself, where it is not merely inadequate but manifestly so. In the absence of a well documented mistake, the discretion of the sentencing judge will be interfered with only in a compelling case; it is not sufficient that this Court would have imposed a more severe sentence: see, generally, R v Tait (1979) 46 FLR 386 at 387-390; 24 ALR 473 at 476-477; R v Holder [1983] 3 NSWLR 245 at 252-256; R v Dodd (at 353).

[29] A similar observation was made in Regina v Baker [2000] NSWCCA 85 at [19] by Spigelman CJ (with whom Grove and Hidden JJ agreed): The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principal must have occurred. 43 Questions of double jeopardy must also be considered (see Weathertex at 74 and 77). Adopting this approach, we are satisfied nevertheless, that a substantial penalty is required in this case. Given the frequency with which employers are prosecuted under the Act for failing to provide fall protection equipment when requiring employees to work at considerable height and at great risk to their lives, it follows that general deterrence must have a tangible role to play in the penalty here imposed. Given the evidence of this defendant's operations, which involved training members of the Aboriginal community, who were paid above award rates, to obtain trade skills in the building industry, we are satisfied that specific deterrence must also play a role in the determination of this penalty. The defendant obviously pursues an entirely commendable endeavour and we have also taken that matter into account in arriving at a considerable discount for the subjective features in the penalty imposed. 44 We accept her Honour's conclusion that there should be a 25 per cent discount on penalty flowing from the utilitarian savings achieved by the entry of the early plea and that the other various subjective matters relied upon by the defendant and accepted by her Honour, should result in a further discount of the penalty. Her Honour rejected the submission that it was relevant that Mr Hewitt would in effect pay any fine imposed, as the sole director of the company, having regard to the evidence of its turnover and profits. This conclusion was not the subject of any appeal and must be accepted. 45 Having weighed all of these matters and having regard to the principles as to the necessity of the appeal bench re-sentencing a defendant exercising caution and restraint, we have concluded that the penalty in this case should be fixed at $55,000. Orders

46 For the reasons given, we uphold the appeal; set aside the penalty imposed at first instance and order the respondent to pay a penalty of $55,000, with a moiety to the prosecutor. We will now hear counsel on the issue of the costs of the appeal.

[Counsel then addressed as to costs] 47 In Inspector Green v Camilleri Properties Pty Ltd and Anor [2006] NSWIRComm 90 the Full Bench said: [30] As to the issue of costs, we note that recently, in Inspector Shaw v Du Pont (Australia) Pty Ltd [2006] NSWIRComm 116 at [22] to [23], the Full Bench referred to the current practice of the Court on appeal not to award costs in prosecution appeals where the prosecution has been successful in contending, for example, that the decision at first instance was in error because of inadequacy of penalty but added that: "[B]ecause of the extensive jurisprudence that now exists in the area as to such prosecution appeals, the time has come to consider whether this situation as to costs should continue. The Full Bench thus gives notice that the approach as to costs may need to be reconsidered in future proceedings although there will be no costs order in these proceedings". [31] We agree with those observations. There will therefore be no costs order in these proceedings, although in similar proceedings in the future an unsuccessful respondent is likely to be required to pay the appellant's costs of the appeal. 48 We also agree with those observations. Parties to contested appeals in this jurisdiction will, with the delivery of this judgment, have clear notice of the change in approach on this issue. Nevertheless, in this appeal which may well be the last of its kind, we have decided that no order for costs will be made. ______________

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