[Extract from Queensland Government Industrial Gazette, dated 23 March, 2007, Vol. 184, No. 12, pages 179-183]

INDUSTRIAL COURT OF QUEENSLAND

Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate

Paul Bradley Waltham AND Transfield Services (Australia) Pty Ltd (C/2006/62)

PRESIDENT HALL 13 March 2007

DECISION

Transfield Services (Australia) Pty Ltd, a corporation under the law, was charged upon complaint with a breach of the Workplace Health and Safety Act 1995 (the Act), in that being a person upon a whom a workplace health and safety obligation was imposed, it failed to discharge the obligation contrary to s. 24 of the Act. The obligation said not to have been discharged was identified as that at s. 28(3), viz. the obligation of an employer to ensure that other persons are not exposed to risks to their health and safety in the conduct of the employer's business or undertaking. A circumstance of aggravation was alleged, viz. that the breach caused grievous bodily harm to Dennis Ernest Goulder. It is not, I should add, in dispute that Mr Goulder suffered a permanent partial ankle incapacity of 12% as a result of the incident in question.

On 14 June 2006, the defendant entered a plea of guilty to the charge. Both the complainant and the defendant made submissions about the appropriate penalty. At the conclusion of the submissions the Industrial Magistrate imposed a fine, awarded certain costs to the complainant and directed that no conviction be recorded. Neither the award of costs nor the decision to refrain from recording a conviction is the subject of attack on this Appeal. The Appeal is about the fine of $18,000. In circumstances in which s. 181B of the Penalties and Sentences Act 1992 operated upon s. 24 of the Act, to inflate the maximum penalty available to $375,000, the $18,000 fine imposed was said to be manifestly inadequate.

The Appellant has helpfully reproduced the "agreed facts" placed before the Industrial Magistrate in the Appellant's outline of argument and I adopt that reproduction:

"1. The defendant is an Australian Propriety Company carrying on business which includes the provision of plant, labour and technical expertise to other business. It operates throughout Australia from its principal place of business located in Kent Street, Sydney.

2. The defendant corporation was, on 2 December 2004, an employer as defined by s. 10 of the Workplace Health and Safety Act 1995, as it had engaged one Andrew Scharkie under a contract of service as a scaffold supervisor on a permanent, full-time basis.

3. The defendant corporation was engaged by QNI to erect a scaffold around its roaster including the multiclone for break down work. The defendant had several standard scaffold plans for the roaster, and the multiclone roaster scaffold was erected to one of those plans.

4. The defendant had been requested to supply labour for the erection of the scaffold, but was unable to do so, due to work backlogs.

5. Scaffolders were engaged for the work through a labour hire company. Those workers were directly supervised by the QNI roaster supervisor; however, the defendant remained responsible for inspection of the scaffold and issue of 'scafftags' for the scaffold, once completed.

6. 'Scafftagging' is a system of affixing tags to the scaffold, to indicate to workers that the scaffold has been inspected and certified as being safe for use.

7. Following its erection, the scaffold was inspected and scafftagged by Bligh Mallard, a scaffolding co-ordinator employed by the defendant. Mallard held an advanced scaffolding ticket.

8. Dennis Goulder was a labourer employed by a contractor, CWG Insulation apply lagging to the roaster.

9. On 2 December 2004, Goulder had spent the morning transporting materials up the scaffold to apply the new lagging to the roaster stack. A column protruded into the scaffold, which Goulder had to work his way around. As he did, he stepped on a wooden plank which was covering a gap in the scaffold floor. 2

10. The plank moved and gave way beneath him. His left leg and his body fell through the gap. His right leg remained positioned on the scaffold floor. His fall was stopped at armpit level.

11. He managed to pull himself back up through the hole, but was immediately aware that his left leg was broken. He was assisted by co-workers and a well organised rescue was promptly affected by the defendant's workers.

12. The Division of Workplace Health & Safety was notified of the incident on the day following the incident and an investigation was undertaken by Principal Inspector Dare.

13. The investigation identified the immediate cause of the incident as being that the scaffold kickboard was not correctly positioned, which allowed the metal planking to move. This allowed a gap to open up which exceeded the width of the overlaying wooden plank, which gave way under the weight of the worker.

14. A series of 6 photographs were taken. The first depict the scene at the time of the rescue. Photograph 4 depicts the planing as it was prior to the incident. Photograph 5 depicts a re-enactment of the fall using another worker. Photograph 6 depicts the scaffold floor from below. [The numbered photographs were before this Court on the Appeal.]

15. The investigation of Inspector Dare further revealed that the gap in the flooring ought to have been covered using nailed ply wood across the entire area. This would have reduced the tripping hazard presented by the wooden plank placed across the gap in the flooring, as well as preventing a fall through the floor planking.

16. A defect in the scafftagging procedure was identified, as the defendant at the time did not follow a detailed checklist for inspection of the scaffold prior to this incident.

17. Section 23 of the Workplace Health and Safety 1995 (WH&S Act) provides that certain persons including employers have obligations for workplace health and safety.

18. Section 28(3) of the WH&S Act (as it stood at the time of this offence) provides that an employer has an obligation to ensure other persons are not exposed to risks to their health and safety arising out of the conduct of the employer's business or undertaking.".

With hindsight, it appears that the matters of fact in paragraphs 16 are not agreed. An affidavit sworn by a Mr David Bond, the group Health, Safety and Environment Manager for Transfield Services (Australia) Pty Ltd, was before the Industrial Magistrate. Mr Bond deposed that a checklist had been used. But, Mr Bond also deposed that the checklist could no longer be found. In circumstances in which neither Mr Bond nor Mr Mallard was required for cross- examination, it seems to me that this Court may only properly deal with the matter of sentencing on the assumption that the checklist was not inadequate. Whether Mr Mallard fell into error (as he did) because he relied too heavily upon the checklist and gave insufficient weight to his own observations, must remain a matter of speculation.

Sentencing is a discretionary exercise. The discretion is vested in the Industrial Magistrate. This Court should go behind the discretion of the Industrial Magistrate only in accordance with principles outlined in House v The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTeirnan JJ and Harris v The Queen (1954) 90 CLR 652 at 655 to 666 per Dixon CJ, Fullagar and Taylor JJ. Here, the Industrial Magistrate's reasons for decision were slender. Identification of an error of law or of principle is difficult. However, two points should be made about the Industrial Magistrate's reasons.

One. In distinguishing the decision of this Court in Lowe v BBC Hardware (2006) 182 QGIG 204 His Honour said:

"I think the incident which occurred in the latter case that is, BBC Hardware, [ibid.] was one which was reasonably predictable in the circumstances where this injury which happened to Mr Goulder was not reasonable predictable and that all reasonable steps were taken by the defendant.".

The objective of the Act, appears at s. 7(1). The objective is to prevent a person's death, injury or illness being caused by a workplace, by a relevant workplace area, by workplace activities or by plant or substances for use at a workplace. By s. 7(2) the objective is achieved by preventing or minimising a person's exposure to the risk of death, injury or illness caused by a workplace, by a relevant workplace area, by work activities, or by plant or substances for use at a workplace. The framework established by the Act to achieve the Act's objectives is described at s. 7(3). It is sufficient to note (see s. 7(3)(a)) that workplace health and safety obligations are imposed upon certain persons who may effect the health and safety of others by their acts or omissions. The obligations, and in particular the obligation at s. 28(3), are absolute obligations. However, notwithstanding the setting aside of ss. 23 and 24 of the Criminal Code Act 1899, the Workplace Health and Safety Act 1995 is neither an Act about strict liability nor an Act about no fault liability. The fault lies in failure to discharge the statutory obligation. That is not to deny that blameworthiness is a relevant consideration. Those who fall short of discharging the statutory obligation, e.g. the obligation at s. 28(3), will include at one end of the spectrum cautious and earnest persons whose best endeavours have failed and at the other end, persons 3 whose conduct has vacillated between the cavalier and the callous. Considerations of deterrence and denunciation, compare Penalties and Sentences Act 1992 s. 9(1)(c) and s. 9(4)(d), will propel a sentencing Industrial Magistrate to the imposition of quite different fines where blameworthiness differs. But considerations of "reasonableness", "foreseeability" or (with respect to Counsel of the Respondent) sufficiency of steps taken, must not be given such weight that at the sentencing stage the absolute burdens cast by the Act are substituted by the values of the common law. The sentencing process must underpin the Act and not undermine it. Two. At another point in the decision His Honour said:

"However, I think that in hindsight it was clear that the kickboard should have been securely fastened in a more appropriate manner for it was the element in the scaffolding which shifted and caused the injury.".

I do not accept that this was a case about hindsight. This is not a case of omission to identify and neutralise a hazard. The hazard was brought into existence. Somebody erected scaffolding with a gap in the floor. Somebody failed to fix the kickboard in a perpendicular position with the consequence that it was possible for the metal planking which constituted the floor to move. Somebody hid the hazard, posed by the gap, by covering it with what was in substance a painter's plank, when the option of nailing plywood was available. Somebody scafftagged the scaffolding and thereby represented to workers that it was safe to use. I accept that there was but one global hazard, but reject the submission of Counsel for the Respondent that there was but one error. There was an error at every step along the way and each of those steps was by way of positive act.

However, whatever criticism may be levelled at the two passages from the Industrial Magistrate's decision described above, it is difficult to assert with confidence that there has been an error of principle or an error of law. In those circumstances, Counsel for the Appellant bases his argument on the quantum of the fine itself. It is put that in all the circumstances a fine of $18,000 was so manifestly inadequate that it is explicable only on the basis of (unspecified) error of law or of principle.

The detail of the submission that the quantum of the fine was manifestly inadequate has been subjected to considerable criticism by Counsel for the Respondent. The essence of the criticism is that the attack on the quantum of the sentence is an invitation to this Court to engage in two-tier sentencing, i.e. to adopt a predetermined range of sentences and to make increments and/or decrements on the basis of the circumstances of the case. Plainly, the decision of the High Court in Markarian v The Queen (2005) HCA 25 (18 May 2005) precludes such an approach. I am not, however, satisfied that such an invitation is being issued. In my view, the factors going to gravity and mitigation were openly debated before the Industrial Magistrate and before this Court. The previous decisions about quantum, were gone to only for reasons of consistency and for assistance in converting opinions about culpability, good character, etc into money amounts. I do not accept that there is anything in Markarian v The Queen (2005) HCA 25 (18 May 2005) to deny an Industrial Magistrate faced with the challenge of fixing a figure between $0 and $375,000 from driving assistance from previous decisions. Ultimately, the decision in particular cases will be for the Industrial Magistrate hearing that case. But the presiding Industrial Magistrate is entitled to assistance, and is required to make some effort to ensure that inconsistency does not get into the decision making process at the conversion to money stage.

It may be accepted that there were significant mitigating factors. Very importantly, the Respondent entered a plea of guilty at the earliest opportunity and cooperated fully with the investigating authority. The Respondent has not previously been convicted of offence. Notwithstanding that the Respondent has operated a very substantial industrial business over many years in dangerous industries with quite a variety of clients, it has a very good safety record. It follows that there is no reason to withhold leniency and the breach should be treated as out of character. I accept that the Respondent had in place a comprehensive safety system to ensure the scaffolding was erected properly and safely. I accept that it was implemented on this occasion and that involved the use of a scaffold plan, a scaffold worksheet, a scaffold register, a scaffold checklist, a job safety analysis for the tasks involved, engagement of trained and experience scaffold supervisors and supervision of the erection of scaffold. But I also recognise that the Respondent pleaded guilty and in so doing accepted that it was at fault in that it did not discharge the obligation cast upon it by s. 28(3).

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 4 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 present case fits comfortably within the cluster. At the risk of repetition, precisely how it was that the Industrial Magistrate came to settle on such a figure as $18,000 does not clearly appear. Referring back to the reference of "hindsight" and the references to "reasonableness" and noticing the absence of denunciation, I rather think the Industrial Magistrate quite underestimated the seriousness of the offence. In any event, the fine imposed by the Industrial Magistrate must be set aside.

Fixing an appropriate figure is another and a more difficult task. Given the cluster of cases to which I have referred and the circumstances that both at first instance and on the Appeal, the complainant contended for a fine in the range of $30,000 to $40,000, I am content to fix a fine in the sum of $37,500. I accept that a fine of $37,500 is quite modest when the maximum is $375,000. I accept also that, whilst the Respondent has been a good corporate citizen and the conduct was out of character, the offence is objectively serious. Continued occurrence of breaches of this gravity will inevitably lead to a complainant seeking reconsideration of sentencing levels to ensure that sentences deter.

I set aside the decision of the Industrial Magistrate given at Townsville on 14 September 2006 imposing a fine of $18,000. In lieu thereof I order that the Respondent pay a fine in the sum of $37,500. I allow 12 months to pay. I otherwise confirm the decision of the Industrial Magistrate.

Dated 13 March 2007.

D. R. HALL, President. Appearances: Mr S. Sapsford directly instructed by Workplace Health and Released: 13 March 2007 Safety Legal and Prosecution Services for the Appellant. Mr A. Glynn SC instructed by Carroll and O'Dea Lawyers, for the Respondent.

Government Printer, Queensland The State of Queensland 2007.