FEDERAL COURT OF AUSTRALIA
Comcare v John Holland Pty Ltd [2016] FCA 501
ORDERS
Applicant | ||
AND: | JOHN HOLLAND PTY LTD ACN 004 282 268 Respondent | |
DATE OF ORDER: |
THE COURT DECLARES THAT:
1. For the purposes of clause 2(1)(a) of Part 1 of Schedule 2 to the Occupational Health and Safety Act 1991 (Cth) (the “OHS Act”), John Holland Pty Ltd (“JHPL”) contravened section 16(1) of the OHS Act on 29 September 2011 by failing to take all reasonably practicable steps to protect the health and safety of Mr Samuel Joseph Beveridge in that JHPL failed to:
(a) take all reasonably practicable steps to provide a work environment, including plant and systems that was safe for employees without risk to their health;
(b) take all reasonably practicable steps to provide a workplace, which was under the control of JHPL and including plant and systems, that was safe for employees without risk to their health; and
(c) take all reasonable steps to provide Mr Beveridge and Mr Matulick (Leading Hand) with the instruction, training and supervision necessary to enable them to perform their work in a manner that was safe and without risk to their health.
THE COURT ORDERS THAT:
2. Pursuant to clause 4 of Part 1 of Schedule 2 to the OHS Act, the respondent pay to the Commonwealth a pecuniary penalty in respect of the contravention of section 16(1) of the OHS Act the subject of the declaration made at para 1 of these orders in an amount of $170,000.
3. The amount the subject of Order 2 be paid within 28 days of the date of this order.
4. The respondent pay the applicant’s costs of and incidental to the proceedings.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
GREENWOOD J:
PART 1: INTRODUCTION; ASPECTS OF THE FAIR WORK DECISION OF THE HIGH COURT (AS LATER DEFINED); AND PRINCIPLES GOVERNING THE EXERCISE OF THE DISCRETION IN DETERMINING AN APPROPRIATE PECUNIARY PENALTY
1 These proceedings are concerned with the question of determining an appropriate penalty to be imposed upon the respondent, John Holland Pty Ltd (“JHPL”), in relation to an admitted contravention of s 16(1) of the now repealed Occupational Health and Safety Act 1991 (Cth) (the “OHS Act”). The OHS Act was repealed in its entirety by operation of the Work Health and Safety (Transitional and Consequential Provisions) Act 2001 (Cth) (called the “Transitional Act” and also described by that term in the Statement of Agreed Facts (“SOAF”) entered into between the applicant, Comcare and JHPL): see Schedule 1 to the Transitional Act. However, the OHS Act by operation of subclause 1(1) of Schedule 2, Part 1 of the Transitional Act continues to apply, in relation to contended breaches of the OHS Act which occurred prior to the “commencing day” of the Transitional Act on 1 January 2012, as if the OHS Act had not been repealed. The tragic events in question here concerning Mr Beveridge, as later described in these reasons, occurred on 29 September 2011.
2 Aspects of the SOAF are set out later in these reasons.
3 The application came before the Court on 20 July 2015 for hearing and was then reserved for further consideration of the issues by the Court.
4 In the early part of 2015, it became apparent that the Full Court of the Federal Court was to consider the question (which, as a general matter, had been the subject of debate in a number of first instance decisions of this Court and other Courts) of the extent to which the decision of the High Court in Barbaro v The Queen (2014) 253 CLR 58 (“Barbaro”) (and the expressions of principle discussed in that decision) might properly inform a principled approach to the determination of a pecuniary penalty under a “civil pecuniary penalty provision” (although the particular statutory regime in the proceedings before the Full Court was to engage the provisions of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”)). The relevant provisions of that Act were thought to be a relevant analogue of civil penalty regimes more generally although, of course, the particular statutory framework would be of critical importance in any given case. The Full Court delivered judgment in that matter (Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331; 320 ALR 631; 105 ACSR 403; [2015] FCAFC 59) and in mid-June 2015, the Commonwealth obtained special leave to appeal from the orders of the Full Court. On 9 December 2015, the High Court delivered judgment in Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; [2015] HCA 46 (“Fair Work”).
5 As a consequence of the High Court’s Fair Work decision, Comcare put on further submissions on 24 December 2015 and JHPL put on further submissions on 1 February 2016.
6 It is necessary to consider aspects of the observations of their Honours in the Fair Work decision so as to identify whether matters of principle emerge from that decision relevant to the exercise of the discretion under cl 4 of Schedule 2 of the OHS Act in determining a pecuniary penalty concerning a contravention of s 16(1) of that Act, having regard to the relevant statutory framework and authorities which expressly address the relevant considerations to be taken into account in the exercise of the discretion.
7 In Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453 (“Cement Australia”) published on 29 April 2016, I expressed observations on those aspects of the Fair Work decision addressing the character of civil penalty proceedings. The Cement Australia decision will not be published to the website for approximately two weeks to enable the parties to isolate confidential market data to be excised from the published edition of the reasons. In Cement Australia, the question before the Court was the determination of a pecuniary penalty having regard to the civil penalty regime contained in the Trade Practices Act 1974 (Cth) and, in particular, s 76(1)(a) of that Act in respect of contraventions of s 45 of that Act (which falls within Part IV of that Act). In terms of a principled approach to identifying the essential features of a civil penalty regime (in the context of the BCII Act there under consideration) and the distinction between a civil penalty regime and principles governing sentencing in criminal proceedings, I expressed the following observations at [26] to [51] (which do not contain any aspects of the confidential market data) concerning the observations of the High Court in the Fair Work decision:
part 2: the fair work decision; the relevant principles to be applied in exercising the discretion under section 76 of the [TRADE PRACTICES act 1974 (CTH)]
The Fair Work decision
26 In Barbaro, French CJ, Hayne, Kiefel and Bell JJ held that where a Court is called upon to pass sentence on an offender in criminal proceedings, the “prosecution’s statement of what are the bounds of the available range of sentences is a statement of opinion” which a sentencing judge may not “take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed”: Barbaro at 66, [7]. That follows because, apart from the “conceptually indeterminate boundaries” of the available range of sentences (and “systemic problems” which would likely result from a criminal sentencing judge being seen to be influenced by the Crown’s opinion as to the available range of sentences), the Crown’s opinion would, in all probability, be informed by an assessment of the facts and relative weighting of the relevant sentencing considerations “different from the judge’s assessment”: Fair Work, the plurality at 491 [56]. Having regard to that consideration, the plurality at [56] also said this: “That is why it was held in Barbaro that it is inconsistent with the nature of criminal sentencing proceedings for a sentencing judge to receive a submission from the Crown as to the appropriate sentence or even as to the available range of sentences”.
27 However, what was said in Barbaro “applies only to criminal proceedings”: Fair Work, the plurality at [50].
28 That follows because there are “basic differences” between a criminal prosecution and civil penalty proceedings and it is those basic differences that provide the “principled basis” for excluding the application of Barbaro from civil penalty proceedings. Those basic differences between a criminal prosecution and a civil penalty proceeding include these considerations: a criminal prosecution is an accusatorial proceeding governed by the fundamental principle that the burden lies in all things upon the Crown to establish guilt beyond reasonable doubt; civil penalty proceedings are “civil” and therefore adversarial with issues and the scope of relief framed by the parties as they choose; and, a criminal prosecution is aimed at securing a criminal conviction whereas a civil penalty proceeding is “precisely calculated” to “avoid the notion of criminality as such”: see Fair Work, the plurality at [53]-[54].
29 No less important, however, is the consideration that the imposition of criminal penalties is conditioned by notions of “retribution” and “rehabilitation” as well as general and specific deterrence, whereas the “purpose” of a civil penalty is primarily, if not wholly, “protective” in promoting the public interest in compliance with the law: Fair Work, the plurality at [55]. Civil penalties, like most other civil remedies, are “essentially deterrent or compensatory” and therefore “protective”: Fair Work, the plurality at [59]. Moreover, neither retribution nor rehabilitation “have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]”, and the principal, and probably the only, “object” of the penalties imposed by s 76, is to attempt to “put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act”: Fair Work, the plurality at [55] adopting the observations of French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152 (“TPC v CSR”).
30 Because a civil penalty and a civil penalty proceeding bear these characteristics, there is nothing exceptional about a Court approving an agreed settlement provided the Court is persuaded that the settlement is, in the statutory language, “appropriate”. That additional matter is not relevant for these proceedings. However, it also follows from these propositions that the Court can quite properly receive either joint or separate submissions from the parties, and particularly a regulator, as to the facts and penalty.
31 As to the position of a regulator, the plurality said this at [60]:
As was emphasised in [NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 (“NW Frozen Foods”)], it is the function of the relevant regulator to regulate the industry in order to achieve compliance and, accordingly, it is to be expected that the regulator will be in a position to offer informed submissions as to the effects of contravention on the industry and the level of penalty necessary to achieve compliance.
32 At [61], the plurality note the logical qualification upon that proposition that the submissions of a regulator on those questions are to be considered on their merits (in the same way as the submissions of a respondent are to be considered), supported as they must be, by findings of fact referable to properly adduced evidence, the agreement of the parties or concessions made by the relevant respondents. The relevant facts must be exposed and the Court bears the responsibility of ensuring that those matters are properly exposed. At [61], the plurality also said this:
But, subject to that imperative, there is no indication in the purpose or text of the BCII Act that the court should be less willing to receive a submission as to the terms and quantum of penalty in a civil penalty proceeding than to receive a submission as to the terms and quantum of relief put up for approval by the court in any other kind of civil proceeding.
[emphasis added]
33 Equally, there is no indication in the purpose or text of the Trade Practices Act that suggests that the Court ought to be unwilling to receive submissions as to the quantum of the penalty in the exercise of the Court’s discretion under s 76(1) of the Act.
34 At [56], the plurality in Fair Work also observe that in “criminal proceedings” the imposition of “punishment” is a “uniquely” judicial exercise of “intuitive” or “instinctive synthesis” (as that term is understood having regard to the observations of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at 611-612, [74]-[76] and the later observations of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen (2005) 228 CLR 357 at 373-375, [37]-[39]) of the sentencing facts, as found by the sentencing judge, and the judge’s “relative weighting” and application of relevant sentencing considerations, in accordance with established sentencing principles. The plurality in Fair Work also observe at [56] that there is “no room” in an exercise of “that nature” for the sentencing judge to take account of the Crown’s opinion as to the appropriate length of sentence.
35 In contrast, however, that is not the position in relation to civil penalty proceedings: Fair Work, the plurality at [56].
36 At [62], the plurality also observes in relation to the BCII Act, that the legislation expressly provided that the Director’s functions included intervening in proceedings and making submissions in accordance with the Act. The legislation did not impose any “express limitation” or “restriction” on the evidence, materials or submissions which could be received from the Director.
37 Moreover, as a matter of construction of the BCII Act in this regard, by providing for “civil penalty proceedings”, the BCII Act “implicitly assumes the application of the general practice and procedure regarding civil proceedings and eschews the application of criminal practice and procedure”: Fair Work, the plurality at [62]. There is no relevant point of differentiation between the BCII Act provisions in this regard and the provisions of the Trade Practices Act. It therefore follows, as a matter of construction of the Trade Practices Act, that by providing for civil penalty proceedings the Act implicitly assumes the application of the general practice and procedure relating to “civil proceedings” and eschews the application of criminal practice and procedure (in relation to the provisions of the Act relevant to these proceedings).
38 Apart from these observations about the fundamental differences between a criminal prosecution and a civil penalty proceeding and the conclusion, as a matter of construction of the legislation, that the BCII Act eschews the application of criminal practice and procedure, the plurality made this further observation at [64] about the role of a regulator in what might be regarded as “typical” civil penalty regimes:
In contradistinction to the role of the Crown in criminal proceedings, it is consistent with the purposes of civil penalty regimes of which Pt 1 of Ch 7 of the BCII Act is typical, and therefore with the public interest, that the regulator take an active role in attempting to achieve the penalty which the regulator considers to be appropriate and thus the regulator’s submissions as to the terms and quantum of a civil penalty be treated as a relevant consideration.
39 There is no point of distinction, so far as the Trade Practices Act is concerned, with the BCII Act, which would render those observations of the plurality inapplicable to the exercise of the discretion under s 76(1) of the Act.
40 Although I have largely confined, in these reasons, my attention to the observations of the plurality in Fair Work, the observations of Gageler J and Keane J are consistent with the statements of principle identified by the plurality.
41 Two things follow from these considerations.
42 First, plainly enough, submissions can properly be made as to the quantum of the penalty and any terms which might attach to the imposition of a pecuniary penalty, by either side, including the regulator.
43 Second, the following question arises. If the purpose of a civil penalty is (at least primarily) protective, that is to say, essentially to deter and thus protective, and the Trade Practices Act (at least in relation to the provisions of the Act relevant to these proceedings) assumes, as a matter of construction, the application of the general practice and procedure relating to civil proceedings (thus eschewing the application of criminal practice and procedure), to what extent do the principles identified in the authorities which govern the exercise of the discretion under s 76(1) (and, for that matter, typical analogous civil penalty regimes), deriving from sentencing principles identified in a number of authorities in the context of criminal sentencing practice and procedure, continue to have any application to the exercise of the discretion under s 76(1)?
44 Further, since in criminal proceedings punishment of the offender is a uniquely judicial exercise of “instinctive synthesis” or “intuitive synthesis” (and a long line of authority holds that the purpose of a civil penalty provision is not punishment; NW Frozen Foods, 297, Burchett and Kiefel JJ); and the Trade Practices Act, so far as relevant to these proceedings, eschews the application of criminal practice and procedure, to what extent does the notion of instinctive synthesis have any application to the exercise of the discretionary judgment to be made when determining an “appropriate” pecuniary penalty under s 76(1)?
45 In exercising the discretion under s 76(1) (and analogous civil penalty regimes) the orthodox position has been to apply, as relevant to the exercise of the discretion, principles derived from a range of authorities identifying appropriate practices applied by judges in the exercise of discretionary sentencing of criminal offenders. As to relatively recent examples, Jacobson J observed in 2014 in Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) (2014) 97 ACSR 412 at [124] (“Registrar v Matcham (No 2)”) that it is “well-established that the principles of sentencing which have been developed in the criminal law apply to the exercise of the discretion to impose civil penalties in those areas of the law which are regulated by civil penalty regimes”. See also the approach adopted by Foster J in Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 applying the same principle at [68] and citing at [76] Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at [42]-[46] (Stone and Buchanan JJ) (“Mornington”) and Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 at [39] (“CFMEU v Cahill”), Middleton and Gordon JJ.
46 I propose to proceed on the following basis in the exercise of the discretion under s 76(1).
47 First, the principled distinctions identified in Fair Work between a criminal prosecution and a civil penalty proceeding provide the basis for the answer to the specific question addressed by their Honours in Fair Work of whether the proposition identified at [7] by the plurality in Barbaro (see [26] of these reasons) applies only to criminal proceedings.
48 Second, as to other matters, although the principled distinctions between a criminal prosecution and a civil penalty proceeding identified by their Honours in Fair Work, and the matters of statutory construction identified by their Honours (as applied to the relevant provisions of the Trade Practices Act, see particularly [37] of these reasons) hold good for all purposes, the exercise of the discretionary judgment to be made under s 76 of the Act continues to engage the notion of instinctive synthesis as a substantive matter of methodological approach to the exercise of the discretion rather than a matter of criminal practice and procedure.
49 Third, the matters of statutory construction identified by the plurality in Fair Work and discussed at [30]-[33] and [38]-[39] of these reasons informs the exercise of the discretion under s 76 even though there is no question here of agreement or joint submissions.
50 Fourth, the statements of principle concerning the purpose of a civil penalty proceeding identified by the plurality in Fair Work and discussed at [29] of these reasons informs the exercise of the discretion under s 76 of the Act.
51 Fifth, substantive matters of methodological approach to the exercise of the sentencing discretion (rather than matters of criminal practice and procedure as such) discussed in the authorities continue to be matters relevant to the exercise of the discretion under s 76 of the Act.
8 Later in these reasons, I set out provisions of the OHS Act which provide the statutory context for the exercise of the discretion under cl 4 of Schedule 2 to the OHS Act when exercising the discretion to order a person to pay a pecuniary penalty to the Commonwealth in respect of a breach of s 16(1) of the OHS Act. Clause 4 of Schedule 2 uses the phrase “the court may order the person to pay … a pecuniary penalty”. That clause does not prescribe particular considerations that are to be taken into account either expressly or inclusively.
9 However, the Court must have regard to all relevant considerations.
10 In Comcare v Post Logistics Australasia Pty Ltd (2008) 178 IR 200; [2008] FCA 1987, Flick J regarded the considerations identified by French J in Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 to be relevant considerations when assessing a pecuniary penalty under cl 4 of Schedule 2 of the OHS Act, as factors serving deterrence. Those considerations identified by French J concern factors to be taken into account when determining an appropriate penalty under s 76(1)(a) of the Trade Practices Act 1974 (Cth) (as the Act was then called). The first four of those factors are considerations identified by s 76(1)(a) of that Act expressly. Other factors are considerations French J regarded as relevant matters in determining a pecuniary penalty under that Act. At [52] to [55], [57] to [59], [77] to [94] and [121] of the Cement Australia decision, I consider those matters and a range of factors relevant to the exercise of the discretion in determining an appropriate penalty under s 76(1)(a) of the Trade Practices Act 1974 (Cth). I regard those considerations as also having relevance to the exercise of the discretion under cl 4 of Schedule 2 to the OHS Act.
11 The paragraphs just mentioned are set out below.
The relevant principles
52 Section 76(1) of the Act provides that where a person has contravened a provision of Pt IV of the Act, the Court may order the person to pay, “in respect of each act or omission by the person to which this section applies”, such pecuniary penalty as the Court determines appropriate “having regard to all relevant matters”. The section then inclusively identifies some of those matters as follows:
the nature and extent of the act or omission;
the nature and extent of any loss or damage suffered as a result of the act or omission;
the circumstances in which the act or omission took place; and
whether the person has previously been found by the Court in proceedings under, relevantly here, Pt VI of the Act, to have engaged in any similar conduct.
53 These expressly identified factors do not exhaust “all relevant matters” but they do reflect the considerations to which the Parliament expressly turned its attention.
54 Because pecuniary penalty proceedings are not “classed as criminal proceedings”, it is not necessary to measure the contravening conduct against “some general community morality in which the law is embedded”. Aspects of some commercial behaviour such as “ruthlessness” and “expansionary ambition” are not elements of the “classes of conduct prohibited by Pt IV” of the Act, nor even “aggravating factors”: TPC v CSR at 52,151, French J. Seeking to characterise contravening conduct in terms of “a morality larger than that which is defined by the legislative purpose is misplaced” [emphasis added]: TPC v CSR at 52,151.
55 In J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 (“J McPhee v ACCC”) at 579 [166], Black CJ, Lee and Goldberg JJ accepted that the provisions of the Act (contraventions of s 45 of the Act were there under consideration) are not designed to regulate or proscribe moral conduct, “but they are calculated and intended to proscribe particular aspects of commercial conduct” and in examining those “particular aspects” of commercial conduct, reflected in the relevant provisions of Pt IV, it is relevant, in determining the pecuniary penalty under s 76 to consider whether there has been a deliberate contravention or a deliberate attempt to contravene the Act. Such a consideration of deliberateness does not involve a moral issue but “takes into account the deliberateness or the calculated manner in which a course of conduct has been undertaken”. Thus, in fixing penalties under s 76, it is appropriate and relevant to take into account whether the contravening conduct was “systemic, deliberate or covert”: J McPhee v ACCC at 577 [158] and [163], Black CJ, Lee and Goldberg JJ. There needs to be “commercial realism” in fixing a penalty and the penalty should be proportionate to the deliberation with which the defendant contravened the Act: TPC v CSR at 52,153; Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 (“Stihl Chain Saws”), Smithers J at 17,896.
56 …
57 In TPC v CSR, French J notes at 52,152 the “primacy” of the deterrent purpose in the imposition of a penalty under s 76 of the Act having observed (see [29] of these reasons) that the principal and probably the only object of penalties imposed by s 76 is to attempt to “put a price on contravention” sufficiently high to deter repetition by the contravener and others tempted to contravene the Act – that is, general and specific deterrence. His Honour then formulates these factors as ones which properly serve the assessment of a penalty of “appropriate deterrent value”:
1. The nature and extent of the contravening conduct.
2. The amount of loss or damage caused [by the contravening conduct].
3. The circumstances in which the conduct took place.
4. The size of the contravening company.
5. The degree of power it has, as evidenced by its market share and ease of entry into the market.
6. The deliberateness of the contravention and the period over which it extended.
7. Whether the contravention arose out of the conduct of senior management or at a lower level.
8. Whether the company has a corporate culture conducive to compliance with the Act as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.
9. Whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention.
58 In Australian Competition and Consumer Commission v Kokos International Pty Ltd (No 2) (2008) ATPR 42-212 at 48,813, French J at [51] accepted that the following three matters are also relevant to the exercise of the discretion (continuing my numbering):
10. Whether the respondents have engaged in similar conduct in the past.
11. The financial position of the respondents.
12. The deterrent effect of the proposed penalty.
59 At [51], his Honour observed that he was “satisfied that the above list [1 to 12] is sufficiently comprehensive”. In Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 (“TPC v TNT”) at 40,169, Burchett J identified two other considerations relevant to the exercise of the discretion: first, whether the total penalty for related offences ought not to exceed what is proper for the entire contravening conduct and second, the extent to which, by admitting the allegations, the respondents saved the community the burden of litigating a lengthy and expensive case. The inverse position might be the extent to which the respondents caused the community to incur the cost and burden of litigating a lengthy and expensive case resulting in proven contraventions. The first consideration may simply be a reference to the “totality principle”, a matter discussed later in these reasons together with an anterior consideration relevant to multiple contraventions, the “one transaction” or “course of conduct” principle. The second consideration is really part of factor 9.
…
77 In Markarian v The Queen (2005) 228 CLR 357, an accused person pleaded guilty to a charge under the Drug Misuse and Trafficking Act 1985 (NSW) of knowingly taking part in the supply of a commercial quantity of heroin. The accused was sentenced to imprisonment for two years and six months with a non-parole period of 15 months. The sentence took into account the commission of four other drug offences admitted by the accused. The contextual facts were that the accused, a heroin addict at the time of the conduct, had acted as a driver for a heroin dealer and had been paid for his services in heroin. The maximum period of imprisonment for the offence was 20 years. A Crown appeal to the Court of Criminal Appeal was allowed and a term of imprisonment of eight years with a non-parole period of four years and six months imposed. In imposing that sentence, the Court had adopted as a “starting point” the maximum period of imprisonment applicable to a less serious drug offence and then made “proportional deductions” and “increases” from that starting point so as to reflect matters specifically relevant to the circumstances of the accused.
78 The determination of a sentence is, like the exercise of the discretion under s 76, a discretionary judgment: Markarian v The Queen at [25], Gleeson CJ, Gummow, Hayne and Callinan JJ. At [27], the plurality observe that apart from express legislative provisions, principle does not dictate the particular path that a sentencer must follow in reasoning to the conclusion reached that the sentence to be imposed should be fixed as it is when passing sentence (in cases where the penalty is not fixed by statute).
79 At [27], the true principle is put this way:
The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
[emphasis added]
[citations removed]
80 At [30], the plurality observe that legislatures do not enact maximum available sentences as “mere formalities” particularly as judges “need sentencing yardsticks”. The plurality observe that it is “well accepted that the maximum sentence available may in some cases be a matter of great relevance”.
81 At [31], the plurality observe:
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.
[emphasis added]
[citations removed]
82 At [32], the plurality observe that the primary judge having started where he did, at a maximum, and then making deductions from it, failed to make an assessment of the sentence called for by the “objective facts”.
83 In Markarian v The Queen, the High Court was invited to reject sequential or two-tiered approaches to sentencing taking as a starting point the maximum penalty available, in favour of a process of “instinctive synthesis”. However, the plurality observe that no universal rules can be stated in those terms as much turns upon what exactly is meant by a sequential or two-tiered approach to determining penalty. Similarly, the process of instinctive synthesis might be wrongly understood as enabling a sentencer to pass sentence without giving exposed reasons for the sentence.
84 At [37], the plurality observe that a sentencing Court will, after weighing all the relevant factors, reach a conclusion that a particular penalty is one that should be imposed. In doing so, adopting, as a method, a mathematical approach to sentencing in which there are to be “increments to” or “decrements from” a predetermined range of sentences (that is to say, a “two-stage approach” to sentencing), is both wrong in principle and apt to give rise to error and should not be adopted.
85 In this respect, the plurality adopted the observations of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at 611-612, [74]-[76]. As to the notion of “instinctive synthesis”, the plurality, again adopting the observations of Gaudron, Gummow and Hayne JJ in Wong v The Queen at [75], observe that the task of the sentencing judge is to “take account of all of the relevant factors and to arrive at a single result which takes due account of them all” [emphasis added] and that this is “what is meant by saying that the task is to arrive at an ‘instinctive synthesis’”. The expression is not used to “cloak the task of the sentencer in some mystery” but is intended to reflect an obligation to balance “many different and conflicting features”.
86 Thus, the process of “instinctive synthesis” requires all of the factors to be balanced in a way which reflects an application of the “rules of reason” (rationality) taking into account all relevant matters, excluding extraneous or irrelevant matters and accurately having regard to the objective facts, all brought together in exposed reasons for the exercise of the discretion in the particular way, serving the public interest in transparency.
87 “Instinctive synthesis” certainly does not mean “informed gut reaction”. Nor, in truth, is it a result based on “instinct” but rather, it is a synthesis of all of the factors mentioned at [85] of these reasons. The term is probably better understood by reference to the substitutable taxonomy of “intuitive synthesis”: Fair Work, the plurality at [56].
88 In determining the amount of a pecuniary penalty, having regard to all of these considerations, it nevertheless remains important to recognise that “insistence upon the deterrent quality of a penalty should be balanced by insistence that it ‘not be so high as to be oppressive’”: NW Frozen Foods, Burchett and Kiefel JJ at 293 F-G, adopting the observations of Smithers J at 17,896 in Stihl Chain Saws.
89 It should also be recognised that a penalty that “would deter a small company might have little effect on a very large one”, for the obvious reason: TPC v TNT at 40,168, Burchett J; see also TPC v CSR at 52,154, French J; ACCC v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 30 at [39], Goldberg J; Luke, Ch 21, Verses 1-4, Authorised King James Version.
90 A further important consideration is the following matter.
91 In the exercise of the s 76 discretion “all relevant matters” must be considered and although the circumstances of every case will inevitably vary and the facts relevant to the contravening conduct will be different in each case and so too will the facts relevant to the 12 factors informing the exercise of the discretion, it nevertheless follows that to the extent that conduct in one case exhibits, in a broad sense, essential similarities with conduct in other cases which have attracted a particular pecuniary penalty, “similar penalties should be incurred”. That follows because “a hallmark of justice is equality before the law, and, other things being equal, corporations guilty of similar contraventions should incur similar penalties”: NW Frozen Foods at 295A-B, Burchett and Kiefel JJ adopting the observations in Trade Practices Commission v Axive Pty Ltd [1994] ATPR 41-368 at 42,795.
92 However, the fact-intensive inquiry inherent in the determination of whether conduct contravenes the Act and the fact-intensive inquiry going to each element of the factors informing the exercise of the discretion means that “other things” are “rarely equal” (Burchett and Kiefel JJ in NW Frozen Foods at 295B-C) where contraventions of the Trade Practices Act are concerned.
93 In NW Frozen Foods, Burchett and Kiefel JJ observe at 295B-C:
In the present case, differing circumstances, size, market power and responsibility for the contraventions as well as other factors, complicate any attempt to compare the penalties imposed on the appellant with those imposed on the other corporations.
94 Other considerations concern the application of the “totality principle” and the anterior question of the “one transaction” or “single course of conduct” principle, discussed as follows.
…
121 Although it will be necessary to mention later in these reasons some aspects of the application of the totality principle, Wilson, Deane, Dawson, Toohey and Gaudron JJ described the principle in these terms in Mill v The Queen (1988) 166 CLR 59 at 62-63:
The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd Ed. (1979), pp. 56-57, as follows (omitting references):
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being tottered up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.’”
See also Ruby, Sentencing, 3rd Ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
[emphasis added]
12 However, the exercise of the discretion is ultimately governed by the statutory instrument itself and proper regard must be had to the relevant provisions.
13 As to the OHS Act, s 3 of the Act is in these terms:
3 Objects
The objects of this Act are:
(a) to secure the health, safety and welfare at work of employees of the Commonwealth, of Commonwealth authorities and of non-Commonwealth licensees; and
(b) to protect persons at or near workplaces from risks to health and safety arising out of the activities of such employees at work; and
(c) to ensure that expert advice is available on occupational health and safety matters affecting employers, employees and contractors; and
(d) to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety; and
(e) to foster a co-operative consultative relationship between employers and employees on the health, safety and welfare of such employees at work; and
(f) to encourage and assist employers, employees and other persons on whom obligations are imposed under the Act to observe those obligations; and
(g) to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions.
14 Section 16 of the OHS Act provides that an employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees: s 16(1).
15 Section 16(2) of the OHS Act provides, without limiting the generality of s 16(1), that an employer “breaches” s 16(1) if the employer, relevantly, fails to take all reasonably practicable steps as contemplated by s 16(2)(a), (b), (c) and (e), set out below:
16 Duties of employers in relation to their employees etc
(1) An employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees.
Note: An employer who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).
(2) Without limiting the generality of subsection (1), an employer breaches that subsection if the employer fails to take all reasonably practicable steps:
(a) to provide and maintain a working environment (including plant and systems of work):
(i) that is safe for the employer’s employees and without risk to their health; and
(ii) that provides adequate facilities for their welfare at work; and
(b) in relation to any workplace under the employer’s control, to:
(i) ensure the workplace is safe for the employees and without risk to their health; and
(ii) …
(c) to ensure the safety at work of, and the absence of risks at work to the health of, the employees in connection with the use, handling, storage or transport of plant or of substances; and
…
(e) to provide to the employees, in appropriate languages, the information, instruction, training and supervision necessary to enable them to perform their work in a manner that is safe and without risk to their health.
16 Schedule 2 addresses the topic of “Civil and criminal proceedings”. Part 1 of Schedule 2 addresses the topic of “Civil proceedings” and Part 2 of Schedule 2 addresses the topic of “Criminal prosecutions”. The OHS Act therefore makes a clear distinction between a civil penalty proceeding and offences which attract criminal prosecution.
17 Clause 2(1)(a) of Schedule 2 provides, relevantly, that if the Court considers that a person has “breached” s 16(1) of the OHS Act, or was involved in such a breach, the Court “must make a declaration that the person has contravened this subclause”. Clause 2(1) is a little oddly expressed because, properly understood, it contemplates that a person has breached an operative provision of the OHS Act (relevantly here, s 16(1)) rather than subclause (1) of cl 2 itself. Clause 2(3) of Schedule 2 sets out the elements of the declaration to be made, for the purposes of cl 2(1). Clause 3 of Schedule 2 provides that “a declaration of contravention” made under cl 2(1) is “conclusive evidence of the matters referred to in subclause 2(3)”.
18 Clause 4 of Schedule 2 is in these terms:
4 Pecuniary penalty orders
(1) If a Court has declared, under subclause 2(1), a contravention of that subclause by a person because the person breached, or was involved in the breach of, a provision listed in that subclause, the court may order the person to pay the Commonwealth a pecuniary penalty.
(2) The pecuniary penalty must not exceed the amount stated in the table to be the maximum penalty in relation to the provision concerned.
[emphasis added]
19 The maximum penalty for a breach of s 16(1) at the material time was 2,200 penalty units which represent a maximum penalty of $242,000.
20 Having regard to the objects of the OHS Act, the relevant provisions, the distinction the OHS Act draws between a civil penalty proceeding and conduct giving rise to offences, the considerations mentioned earlier derived from the High Court’s Fair Work decision and the jurisprudence in connection with the exercise of the discretion under cl 4 of Schedule 2 of the OHS Act, these additional considerations are relevant:
(1) In Comcare v Commonwealth of Australia (2007) 163 FCR 207; [2007] FCA 662, Madgwick J observed at [116] that the “overriding principle in assessing penalty is that the amount of the penalty should reflect the Court’s view of the seriousness of the offending conduct in all the relevant circumstances” [emphasis added]. The “seriousness” of the contravening conduct, in all the relevant circumstances, is an important matter because it must be weighed in the balance in determining the amount of a penalty as an element of serving the public interest in general and specific deterrence: the Fair Work decision.
(2) In Comcare v Commonwealth (supra), Madgwick J at [120] sets out 10 considerations derived from decisions, in the main, of the New South Wales Industrial Commission applying cognate provisions of New South Wales State Occupational Health and Safety laws which were said by his Honour at [123] to provide “useful, analogical, general guidance” to the approach to be taken under the OHS Act in the exercise of the discretion to impose a pecuniary penalty in respect of contravening conduct. The 10 well-known factors are described in later authorities as the “Madgwick factors”.
(3) It has become something of a common practice in decisions of this Court in determining a penalty to be imposed under cl 4, Schedule 2 of the OHS Act to recite jurisprudential adherence to these well-known 10 Madgwick factors (among other considerations): Comcare v Post Logistics Australasia Pty Ltd (2008) 178 IR 200 [2008]; FCA 1987, Flick J at [32]; Comcare v Commonwealth of Australia (2009) 184 IR 441; [2009] FCA 700 at [69], North J; Comcare v John Holland Rail Pty Ltd [2009] FCA 771; (2009) 188 IR 415 at [137] to [143], Barker J; Comcare v Subsee Explorer Pty Ltd (2011) 210 IR 322; [2011] FCA 837 at [41], Collier J; Comcare v John Holland Pty Ltd (No 2) [2009] FCA 1515; (2009) 191 IR 223 at [36], Collier J; Comcare v Linfox Australia Pty Ltd (2010) 198 IR 160; [2010] FCA 793 at [40] (and also quoting at [42] and [43] the observations of Barker J at [135] and [136] in Comcare v John Holland Rail Pty Ltd (supra)), McKerracher J; Comcare v Australian Postal Corporation [2011] FCA 530 at [12] (also quoting [32] to [39] of the decision of Flick J in Comcare v Post Logistics Australasia Pty Ltd (supra)), Kenny J; Comcare v Transpacific Industries Pty Ltd [2012] FCA 90 at [34] to [37], Barker J; Comcare v John Holland Pty Ltd (2012) 129 ALD 486; [2012] FCA 449 at [43], McKerracher J (re-affirming the factors identified by Madgwick J in Comcare v Commonwealth of Australia (supra) as set out earlier by McKerracher J at [40] to [44] of his Honour’s decision in Comcare v Linfox Australia Pty Ltd (supra)); Comcare v Commonwealth of Australia (2012) 132 ALD 480; [2012] FCA 1419 at [96] to [99], Griffiths J; Comcare v John Holland Pty Ltd (2014) 245 IR 464; [2014] FCA 1191 at [78] and [79], Siopis J; Comcare v Linfox Australia Pty Ltd (2015) 144 ALD 513; [2015] FCA 61 at [18] to [23], Flick J; Comcare v Transpacific Industries Pty Ltd (2015) 146 ALD 637; [2015] FCA 500 at [107] to [123], Barker J.
(4) Apart from these first instance decisions, there is an important intermediate Court of Appeal decision of this Court from 2012: Comcare v Post Logistics Australasia Pty Ltd (2012) 207 FCR 178; [2012] FCAFC 168.
(5) The considerations (and statutory background) to be taken into account in the exercise of the discretion under cl 4 of Schedule 2 of the OHS Act in respect of a breach of s 16(1) are these (the matters at (n) to (v) reflect in substance the “Madgwick factors”):
(a) the OHS Act has been repealed by the Transitional Act. Simply, for present purposes, as a matter of context, the Transitional Act is described as an Act to deal with transitional and consequential matters in connection with the Work Health and Safety Act 2011 (Cth) (the “WHS Act”) and related purposes. That Act has as its main object providing for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by (among other things) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: see s 3 of that Act. That object is in similar terms to s 3(a) of the OHS Act and related objects. The WHS Act also provides for a civil penalty regime in Div 7 of Pt 13 of that Act and the imposition of a monetary penalty “that the court considers appropriate” (s 259). In these proceedings, of course, the penalty is to be determined according to the continued operation of the OHS Act (see [1] of these reasons);
(b) the purpose of a civil penalty under the OHS Act is primarily, if not wholly, protective in promoting the public interest in compliance with the law designed, in this case, to protect the health, safety and welfare at work of employees (of the relevant employers);
(c) civil penalties are “essentially deterrent” (both general and specific) and therefore “protective” of the public interest: Fair Work, the plurality at [55] and [59];
(d) the object of a penalty imposed under the OHS Act is to attempt to put a price on contravention that is sufficiently high (within the limits set by the Parliament in the OHS Act) to deter repetition by the contravener and by others who might be tempted to contravene the Act, so as to serve the objects of securing the health, safety and welfare of employees and protecting the safety of those employees in their workplaces;
(e) the determination of a pecuniary penalty under the OHS Act is a discretionary judgment which engages the application of the general practice and procedure concerning civil proceedings and which involves an exercise of intuitive or instinctive synthesis;
(f) the purpose of imposing a pecuniary penalty under the OHS Act is not one of punishment. Deterrence has primacy of purpose;
(g) careful attention to maximum penalties will almost always be required when determining an appropriate penalty because the legislature has legislated for them and a maximum penalty invites comparison between the worst possible case and the case before the Court. Also, a maximum penalty, taken and balanced with all of the other relevant factors provides a yardstick: Markarian v The Queen (2005) 228 CLR 357, the plurality at [31];
(h) the notion of intuitive or instinctive synthesis involves taking account of all of the relevant factors and arriving at a single result which “takes due account of them all”: Wong v The Queen (2001) 207 CLR 584 at 611-612, [74] to [76];
(i) the process of intuitive or instinctive synthesis requires all of the factors to be balanced in a way which reflects the application of the “rules of reason” (rationality) taking into account all relevant matters, excluding extraneous or irrelevant matters and accurately having regard to the objective facts, all brought together in exposed reasons for the exercise of the discretion in the particular way, serving the public interest in transparency;
(j) insistence upon the deterrent quality of a penalty should be balanced by insistence that it “not be so high as to be oppressive”: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 293 F-G, Burchett and Kiefel JJ;
(k) a penalty which “would deter a small company might have little effect on a very large one”: Trade Practices Commission v TNT Australia Pty Ltd [1995] ATPR 41-375 at 40,168, Burchett J; Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 at 52,154, French J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 at [39], Goldberg J;
(l) to the extent that conduct in one case exhibits, in a broad sense, essential similarities with conduct in other cases which have attracted a particular pecuniary penalty, “similar penalties should be incurred” because “a hallmark of justice is equality before the law, and, other things being equal, corporations guilty of similar contraventions should incur similar penalties”: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (supra) at 295 A-B, Burchett and Kiefel JJ; Trade Practices Commission v Axive Pty Ltd [1994] ATPR 41-368 at 42,795;
(m) the fact intensive enquiry going to each of the elements informing the exercise of the discretion means that, generally, “other things” are “rarely equal”: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (supra) at 295 B-C, Burchett and Kiefel JJ;
(n) the penalty must compel attention to occupational health and safety generally so as to ensure that employees in workplaces will not be exposed to risks to their health and safety;
(o) if the risk of injury was foreseeable even though the “precise cause” or “precise circumstances” of the exposure to risk were not foreseeable, the Court will regard that matter as a “significant aggravating factor”;
(p) another such significant aggravating factor arises if the risk of injury was not only foreseeable but was “actually foreseen” and an “adequate response” to that risk was not undertaken by the employer;
(q) a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of the employee and a momentary lapse of supervision;
(r) the neglect of simple, well-known precautions to deal with an evident and great risk of injury takes the contravention towards the worst case category;
(s) employers are required to take all practicable precautions to ensure safety in the workplace, which implies an obligation of constant vigilance and therefore employers must adopt an approach to safety which is “proactive” and not “merely reactive”. Thus, in determining the amount of the penalty, it will be necessary to have regard to the need to encourage a “sufficient level of diligence” by the employer in its future behaviour. This is said to be so especially where the employer “conducts a large enterprise which involves inherent risks to safety”;
(t) the gravity of the consequences of an accident does not, “of itself”, dictate the seriousness of the contravention or the amount of the penalty. Nevertheless, the occurrence of death or serious injury may manifest a “degree of seriousness of the relevant detriment to safety”;
(u) general deterrence and specific deterrence are particularly relevant factors in light of the objects and provisions of the OHS Act;
(v) the objective seriousness of the offence, without more, may call for the imposition of a “very substantial penalty” to vindicate the social and industrial policies of the legislation and its civil penalty regime;
(w) the deliberateness of the contravention;
(x) whether the contravention arose out of the conduct of senior management or at a lower level;
(y) whether the company has a culture of compliance conducive to compliance with the OHS Act as evidenced by educational programs and other materials going to a demonstrated commitment to ensuring compliance with the OHS Act;
(z) whether the contravener has shown a pre-disposition to co-operate with the authorities responsible for the enforcement of the OHS Act. As to co-operation, matters to be considered are whether the contravener has made an early admission of the contravention; whether the contravener is contrite; and whether the contravener has agreed facts relevant to the circumstances of the contravention;
(aa) all of the matters at (a) to (z) comprehend an examination of the nature and extent of the contravening conduct; the damage to health and safety caused by the conduct; the circumstances in which the conduct occurred; the size of the company engaging in the contravening conduct; and whether the respondent has engaged in similar conduct in the past. These are the additional specific factors identified at [52], [57] and [58] of the Cement Australia decision which address the factors identified by French J in Trade Practices Commission v CSR (supra).
21 It is now necessary to turn to the facts agreed by the parties in accordance with the SOAF.
PART 2: STATEMENT OF AGREED FACTS
22 There is no issue as to the status or standing of Comcare to bring these proceedings.
23 All of the matters set out at [24] to [72] of these reasons are drawn from the SOAF.
24 JHPL, together with Thiess Pty Ltd (“Thiess”), was engaged by BrisConnections Operations Pty Ltd, BrisConnections Nominee Company Pty Ltd as trustee of the BrisConnections Asset Trust, BrisConnections Contracting Pty Ltd and Northern Busway Contracting Pty Ltd, to undertake the planning, design, construction and commissioning of the North Busway (Windsor to Kedron), the Airport Roundabout Upgrade and Airport Link Tunnel (collectively called the “Project”) under the terms of a Design and Construct Contract dated 2 June 2008 (the “D&C Contract”). JHPL and Thiess were parties to an unincorporated joint venture known as the Thiess John Holland Joint Venture (“TJHJV”).
25 On or about 29 September 2009, Thiess and JHPL entered into a joint venture agreement (the “TJHJV Agreement”) to reflect the terms and conditions on which they would associate with each other to perform the design and construction work for the Project.
26 The TJHJV Agreement provides at cl 13.1 that JHPL assumed obligations as an employer in control of a construction project arising under the OHS Act and associated regulations.
27 Construction of the Project commenced in or about November 2008 and was continuing in September 2011.
28 At all material times, the Project was a “construction project” within the meaning of Regulation 12.02 of the Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth) (the “OHS Regulations”); involved undertaking “construction work” within the meaning of Regulation 12.02 of the OHS Regulations; and the places at which the Project was undertaken constituted a “workplace” within the meaning of s 5 of the OHS Act and a “construction site” within the meaning of Regulation 12.02 of the OHS Regulations.
29 JHPL was, at all material times, a body corporate; an “eligible corporation” declared pursuant to s 100 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act”); a “non-Commonwealth licensee” holding a licence under Part VIII of the SRC Act; an “employer” within the meaning of s 5 of the OHS Act; an employer in control of a workplace and an employer in control of a construction workplace.
30 Mr Samuel Joseph Beveridge was an employee of JHPL; a “non-Commonwealth licensee employee” within the meaning of that term in s 9(3A) of the OHS Act; a person at work within the meaning of s 16(1) of the OHS Act on 29 September 2011; and an employee undertaking construction work on a construction project on that date.
31 At all material times, JHPL pursuant to s 16(1) of the OHS Act, had a statutory duty to take all reasonably practicable steps to protect the health and safety at work of its employees. That duty included a duty to take all reasonably practicable steps to provide and maintain a working environment that was safe for employees and without risks to their health pursuant to s 16(2)(a) of the OHS Act; a duty to ensure that the workplace was safe for employees and without risk to their health pursuant to s 16(2)(b) of the OHS Act; and a duty to provide all employees with information, instruction, training and supervision necessary to enable them to perform their work in a manner that was safe and without risk to their health pursuant to s 16(2)(e) of the OHS Act.
32 At all material times, JHPL had the duties of an employer in control of a construction project including those duties set out in Regulations 12.05, 12.07, 12.08, 12.09 and 12.12 of the OHS Regulations.
33 JHPL utilised a system called a “TBM Smoke Duct Formwork System” (“Smoke Duct Formwork”) as part of the construction of the Airport Link Tunnel (the “Tunnel”) to provide mobile formwork for the pouring of suspended concrete slabs which ultimately would form the roof of the Tunnel.
34 Smoke Duct Formwork was designed to be constructed within the Tunnel; assembled within the Tunnel; utilised for pouring the suspended concrete slabs forming the roof of the Tunnel; disassembled within the Tunnel; and transported from the Tunnel. The major components of the Smoke Duct Formwork were a formwork table (the “Table”); a support structure which was made up of four carrier legs; and a carrier unit used to manoeuvre and support the Table and the carrier legs. Each of the four carrier legs was made up of three sections including a hydraulic jack (“Jack”), a retractable leg (“Retractable Leg”) and a steel formwork structure which encased the Jack and the Retractable Leg (the “Leg Frame”)).
35 The process of disassembling the Smoke Duct Formwork used by JHPL involved these steps:
(a) positioning the carrier unit beneath the Table and retracting the Retractable Leg in order to transport the section of formwork to the disassembly area;
(b) the Jacks were then lowered to the floor of the Tunnel using either a hoist or a Franna crane;
(c) the Jacks were removed from the Leg Frames and the Leg Frames were cut using an oxy-acetylene torch to facilitate their transportation from the Tunnel;
(d) the disassembled Leg Frames were then loaded onto transport and removed from the Tunnel;
(e) the Table was supported by hoists allowing the carrier unit to be removed from beneath the Table;
(f) the Table was then lowered to the floor of the Tunnel and cut into sections using an oxy-acetylene torch to facilitate their transportation from the Tunnel;
(g) the disassembled Table was then loaded onto transport and removed from the Tunnel; and
(h) these steps were repeated for each unit of Smoke Duct Formwork.
36 On or about 26 to 29 September 2011, the following workers were employed by JHPL and were assigned to undertake Smoke Duct Formwork disassembly on those days: Mr Paul Matulick, Leading Hand; Mr Beveridge, Mechanical Fitter, Mr Peter Anderson, Tunneller; and Mr Vergilio Alacorn, Mechanical Fitter. These men are collectively described as the “Smoke Duct Formwork Disassembly work crew”.
37 As to Mr Beveridge, Mr Matulick and Mr Alacorn: as at September 2011, Mr Beveridge was a qualified Mechanical Fitter and had 19 years’ experience as a Mechanical Fitter; Mr Matulick was a qualified Mechanical Fitter and had 22 years’ experience as such; Mr Alacorn was a qualified Mechanical Fitter and had 20 years’ experience as such. As to the reporting lines of authority, the Smoke Duct Formwork Disassembly work crew reported directly to Mr Leigh Moles, a Mechanical Foreman employed at the Project. Mr Moles reported directly to Mr John Bostock, a Mechanical Superintendent employed at the Project.
38 On a date prior to 19 September 2011, Mr Bostock attended a Risk Management Meeting to discuss the disassembly of the Smoke Duct Formwork. On a date prior to 19 September 2011, Mr Bostock stated to Mr Moles words to the effect that the disassembly and removal of the Smoke Duct Formwork from a section of the Tunnel known as S512 was to commence on 26 September 2011. On or about 27 September 2011, Mr Bostock, after discussion with Mr Matulick, decided to salvage four “box” sections (referred to in the Statement of Claim as “U” sections) that made up part of each Leg Frame from the Smoke Duct Formwork (described as the “four ‘box’ sections”) so that they could later be re-used as a transport frame for a beam which was to be removed from the Tunnel (the “Beam”).
39 The “box” sections of the Leg Frame structures were to be salvaged by oxy-cutting the said “box” sections from each Leg Frame. Mr Bostock told Mr Matulick to make some measurements of the Beam and calculate the length of Leg Frame required to be retained in order to make the transport frame for the Beam. On or about 28 September 2011, the Smoke Duct Formwork Disassembly work crew began disassembling the Smoke Duct Formwork in preparation for its removal on 29 September 2011.
40 At about 6.30am on 29 September 2011, a Prestart Meeting was held by Mr Matulick with the Smoke Duct Formwork Disassembly work crew (Mr Matulick, Mr Beveridge, Mr Anderson and Mr Alacorn). During the meeting, Mr Matulick said to the work crew words to the effect that the four “box” sections were to be cut and salvaged for re-use.
41 On 29 September 2011, Mr Beveridge and Mr Matulick measured and marked up the “box” section of the Leg Frame to be salvaged in preparation for cutting. Mr Matulick did not give Mr Beveridge specific instructions as to the methodology to be utilised in cutting the “box” section from the Leg Frame. The Leg Frame was elevated at one end as a result of the position of clevises with the result that the “box” section that was required to be cut off, was raised off the Tunnel floor.
42 The location of the cuts was such that when the cuts were completed, the “box” section of the Leg Frame would separate from the part of the Leg Frame supported by the clevises and if not independently or adequately supported the “box” section would fall towards the Tunnel floor by its own weight.
43 The weight of the “box” section of the Leg Frame to be cut was not independently supported or adequately supported. From a standing position outside the Leg Frame, Mr Beveridge commenced cutting the outside upright section of the “box” section of the Leg Frame with an oxy-acetylene torch.
44 Mr Beveridge was undertaking the cuts by cutting the side faces and bottom face of each section first, leaving the final cuts across each top until last. Mr Beveridge made three cuts to one part of the “box” section of the Leg Frame. On that part of the “box” section, Mr Beveridge had cut across two side faces and across the bottom face leaving only the top face intact. On the second part of the “box” section, Mr Beveridge cut the two side faces. Mr Beveridge also made two cuts to the underside of the “box” section which did not meet each other. Mr Beveridge was not provided with a method or instruction for viewing those cuts whilst he was undertaking them, or for subsequently checking the alignment and/or efficacy of those cuts.
45 Mr Beveridge, in cutting across two side faces and then across the bottom face when making the cuts to the first and second parts of the “box” section, had adopted a sequence of making cuts that was consistent with the sequence of cuts that qualified and experienced mechanical fitters would adopt, when acting prudently.
46 Mr Beveridge placed his head and body under the Leg Frame.
47 Mr Beveridge, in placing his head and body under the Leg Frame, in circumstances where there were no control measures in place to address the risk of uncontrolled movement; and where Mr Beveridge had already made three cuts to the other part of the “box” section of the Leg Frame and had made two cuts across the two side faces of the second part of the “box” section of the Leg Frame, departed from a practice that a qualified and experienced Mechanical Fitter would adopt when acting prudently.
48 JHPL did not expect and had not considered that Mr Beveridge would place part of his body under the Leg Frame in circumstances where Mr Beveridge had made three cuts on the first part of the “box” section and two cuts on the second part of the “box” section and where Mr Beveridge was a qualified and experienced Mechanical Fitter.
49 The Leg Frame collapsed at the point of the cuts to each part of the “box” section of the Leg Frame made by Mr Beveridge pinning Mr Beveridge under the Leg Frame. Following the collapse, an uneven break existed between the two cuts on the bottom face of the second part of the “box” section that had been made by Mr Beveridge. As a result of Mr Beveridge being pinned underneath the Leg Frame, Mr Beveridge suffered severe crush injuries to his head, neck and chest and subsequently died from his injuries on 1 October 2011.
50 At all material times, the TJHJV had in place a Construction Workplace Plan which provided that six risk management processes were deployed on the Project. They were: Safety in Design Reviews intended to identify design hazards during all phases of the lifecycle of the relevant structure; Construction Risk Register intended to capture any residual risk identified by the Safety in Design Reviews; Site Activity Packs intended to be the documented system used on the Project for planning and controlling specific construction activities made up of four components: (i) Construction Work Method Statements intended to prescribe the process and procedures required to complete a task and to assist in the development of Workplace Risk Assessments and Job Safety and Environmental Analysis (“JSEA”); (ii) Workplace Risk Assessments; (iii) JSEA instruments which were intended to provide specific instruction on how to complete a certain task and highlight the key risk management and behavioural requirements of the task; and (iv) Safety Cards.
51 The TJHJV had developed a Construction Work Method Statement specific to the assembly and disassembly of Smoke Duct Formwork. The document is called the TBM Smoke Duct Formwork System Assembly and Disassembly Work Method Statement TJH-AT-WMS-CO-0141 (the “Smoke Duct Formwork WMS” or otherwise also called the “WMS” later in these reasons).
52 The Smoke Duct Formwork WMS:
(a) stated that minor activities and related issues incidental to the disassembly of the Smoke Duct Formwork would be covered and communicated in work meetings, daily pre-start meetings and further procedural documentation;
(b) required work to be constructed in accordance with the Safety and Health Management Plan TJH-GL-PLN-OS-0001 (the “Safety and Health Management Plan”) which stated that an activity-specific JSEA was to be implemented prior to the commencement of relevant works;
(c) provided that all JSEAs were to be understood, signed off and provided to the Safety Department, prior to works commencing;
(d) required work to be constructed in accordance with the Safety and Health Management Plan which provided that the Supervisor of works was to monitor compliance of the works with the activity-specific JSEA and to update the JSEA during the works;
(e) did not identify the cutting of Leg Frames as an activity in the process of disassembly of the Smoke Duct Formwork;
(f) did not identify uncontrolled or unexpected movement as a hazard during the cutting of the Leg Frames;
(g) did not identify or assess specific risks associated with cutting Leg Frames; and
(h) did not identify specific control measures to be adopted when cutting Leg Frames.
53 The TJHJV had developed a JSEA specific to the disassembly of the Smoke Duct Formwork, described as the Smoke Duct Table Dismantling JSEA-TJH-GL-FRM-OS-036A-3-00 (the “Smoke Duct JSEA”).
54 The Smoke Duct JSEA:
(a) did not address the task of cutting the Leg Frames;
(b) did not identify the cutting of Leg Frames as an activity in the process of disassembly of the Smoke Duct Formwork;
(c) did not identify uncontrolled or unexpected movement as a hazard during the cutting of the Leg Frames;
(d) did not identify or assess specific risks associated with cutting Leg Frames; and
(e) did not identify any specific control measures to be adopted when cutting Leg Frames.
55 Messrs Beveridge, Anderson and Alacorn were required to undertake, and did undertake, JSEA training during their Tunnel Boring Machines site induction (“JSEA Induction Training”) which facilitated their capacity to receive and act on instruction provided by others who received detailed training in the preparation, implementation, revision and/or monitoring of compliance with JSEA’s Detailed JSEA Training. Mr Matulick was the only member of the Smoke Duct Formwork Disassembly work crew who was required to undertake Detailed JSEA Training and he had not undertaken that training before 29 September 2011.
56 On or about 19 September 2011, Mr Moles obtained a copy of the Smoke Duct JSEA from Mr Adam Watson, Smoke Duct Foreman, employed by JHPL.
57 On or about 19 September 2011, Mr Moles gave a copy of the Smoke Duct JSEA to Mr Matulick and directed Mr Matulick review the document and distribute the document to the Smoke Duct Formwork Disassembly work crew.
58 At no time did any person update the Smoke Duct JSEA, nor did any employee or agent of JHPL instruct any person to amend the Smoke Duct JSEA following the change in the work method in relation to measuring, cutting and retaining the “box” section of the Leg Frames.
59 On 22 August 2011, Mr Moles, Mr Matulick and Mr Beveridge signed a Work Activity Briefing Checklist – TBM Disassembly – G1-G2-TJH-GL-FRM-OS-036C-00 (the “WAB Checklist”) in relation to the Smoke Duct Formwork disassembly.
60 The WAB Checklist:
(a) did not address the task of cutting the Leg Frames;
(b) did not identify the cutting of Leg Frames as an activity in the process of disassembly of the Smoke Duct Formwork;
(c) did not identify uncontrolled or unexpected movement as a hazard during the cutting of the Leg Frames;
(d) did not identify or assess specific risks associated with cutting Leg Frames; and
(e) did not identify any specific control measures to be adopted when cutting Leg Frames.
61 No employee or agent of JHPL undertook a formal risk assessment in relation to the cutting of the Leg Frames.
62 Mr Moles and/or Mr Bostock were responsible, on behalf of JHPL, for the preparation, implementation and monitoring of compliance of JSEA documents in accordance with the Smoke Duct Formwork WMS, the “TBM Tunnel Operations Construction Workplace Plan” and their respective position descriptions.
63 The Smoke Duct JSEA was signed by the Smoke Duct Formwork Disassembly work crew on 28 September 2011.
64 The events described at [33] to [63] of these reasons constituted a failure by JHPL to take all reasonably practicable steps to provide a work environment, including plant and systems, that were safe for employees without risk to their health in that JHPL:
(a) failed, as required by s 16(2)(a) of the OHS Act and Regulation 12.05 of the OHS Regulations, to identify the hazard of unexpected or uncontrolled movements during the cutting of the Leg Frames;
(b) failed, as required by s 16(2)(a) of the OHS Act and Regulation 12.07 of the OHS Regulations, to adequately assess the risk of uncontrolled movements of the Leg Frame causing injury to Mr Beveridge in the disassembly of the formwork;
(c) failed, as required by s 16(2)(a) of the OHS Act and Regulations 12.08 and 12.09 of the OHS Regulations to take all reasonably practicable steps to control the risks described in sub-paragraph 64(b) above, including:
(i) ensuring the Leg Frame was adequately supported or restrained during the disassembly process;
(ii) failing to identify the cutting of the Leg Frame in the Smoke Duct Formwork WMS or the JSEA;
(iii) reassessing risks where changes to the task arose and implementing adequate controls;
(iv) adequately prohibiting Mr Beveridge from accessing an area where unexpected or uncontrolled movement of the Leg Frame would result in injury;
(v) ensuring adequate planning of work based on an assumption that failure will occur; and
(vi) providing Mr Beveridge a safe means by which to check the alignment and/or efficacy of the cuts made to the Leg Frame.
65 The events described at [33] to [63] of these reasons constituted a failure by JHPL to take all reasonably practicable steps to provide a workplace (which was under the control of JHPL) and including plant and systems that was safe for employees without risk to their health in that JHPL:
(a) failed, as required by s 16(2)(b) of the OHS Act and Regulation 12.05 of the OHS Regulations, to identify the hazard of unexpected and uncontrolled movements during the cutting of the Leg Frames;
(b) failed, as required by s 16(2)(b) of the OHS Act and Regulation 12.07 of the OHS Regulations, to adequately assess the risk of uncontrolled movements of the Leg Frame causing injury to Mr Beveridge in the disassembly of the formwork;
(c) failed, as required by s 16(2)(b) of the OHS Act and Regulations 12.08 and 12.09 of the OHS Regulations, to take all reasonably practicable steps to control the risks described in sub-paragraph 65(b) above, including:
(i) ensuring the Leg Frame was adequately supported or restrained during the disassembly process;
(ii) failing to identify the cutting of the Leg Frame in the Smoke Duct Formwork WMS or the JSEA;
(iii) reassessing risks where changes to the task arose and implementing adequate controls;
(iv) adequately prohibiting Mr Beveridge from accessing an area where unexpected or uncontrolled movement of the Leg Frame would result in injury;
(v) ensuring adequate planning of work based on an assumption that failure will occur; and
(vi) providing Mr Beveridge a safe means by which to check the alignment and/or efficacy of the cuts made to the Leg Frame.
66 The events described at [33 to [63] of these reasons constituted a failure to take all reasonable steps to provide Mr Beveridge and Mr Matulick with the instruction, training and supervision necessary to enable them to perform their work in a manner that was safe and without risk to their health in that JHPL failed, as required by s 16(2)(e) of the OHS Act and Regulation 12.12 of the OHS Regulations:
(a) to provide Mr Beveridge training or instruction in relation to risk or control measures associated with the disassembly of the Smoke Duct Formwork;
(b) to provide Mr Matulick training or instruction in relation to the drafting, implementation or revision of JSEA’s; and
(c) to provide Mr Beveridge with information and instruction in relation to the hazard referred to in sub-paragraph 66(a) and a safe system of work to undertake the cutting of the Leg Frame.
67 JHPL contravened s 16(1) of the OHS Act.
68 Following the collapse of the Leg Frame, Comcare conducted an investigation.
69 JHPL co-operated fully with Comcare in the conduct of the investigation, including by providing information and documents requested by Comcare and by making its employees available for interviews by representatives of Comcare.
70 The parties consent and agree to seek from the Court a declaration that JHPL contravened s 16(1) of the OHS Act on 29 September 2011 by failing to take all reasonably practicable steps to protect the health and safety of Mr Samuel Joseph Beveridge in the manner set out at [64], [65] and [66] of these reasons.
71 Pursuant to cl 4 of Schedule 2, Part 1 of the OHS Act and the admissions made in the SOAF, as reflected in these reasons, the parties consent and agree to seek from the Court an order that JHPL pay to the Commonwealth a pecuniary penalty to be determined by the Court.
72 The parties have also agreed that JHPL pay Comcare’s costs as agreed or taxed.
PART 3: ASPECTS OF THE EVIDENCE
73 Apart from the factual matters set out in the SOAF, the parties have put on a series of affidavits which address aspects of the agreed facts and other factual matters.
74 JHPL relies upon a number of affidavits to which I have had regard including an extensive affidavit of Mr Dean John Cipolla. Mr Cipolla has held the position since October 2013 of General Manager Knowledge Management and Business Improvement, John Holland Group Pty Ltd (“JH Group”), and since July 2014, additionally, the position of Acting Group General Manager Health Safety and Environment. Mr Cipolla has been an employee of JH Group since February 2003.
75 Mr Cipolla deposes extensively (including two volumes of documents marked as annexures) to the origin of the various John Holland entities; the scope of the businesses conducted by those entities; the Project; the relevant construction works related to the Project of constructing the tunnels; the Smoke Duct Formwork System including its disassembly; the incident; the methodologies, systems, documents and processes surrounding “Construction Workplace Plans” and each of the subsidiary, inter-related or intersecting documents touching upon occupational health and safety in the conduct of the Project works generally and, in the case of the disassembly of the Smoke Duct Formwork, specifically; the line reporting in relation to the disassembly work; the report in relation to the incident prepared by JHPL’s “investigation team”; and the subsequent workplace steps taken by or on behalf of JHPL as a result of a close examination of the circumstances that led to the incident which tragically resulted in the death of Mr Beveridge.
76 At para 3 of his affidavit, Mr Cipolla, on behalf of JHPL, expresses “sincere sorrow and regret on its behalf about the death of Mr Samuel Beveridge while at work on the Project and the suffering of his family, friends, and colleagues on the Project”. Mr Cipolla says that the incident has had “a deep and lasting impact on John Holland and its workers, which continues to be felt today” and the “[i]ncident, Mr Beveridge and his family remain in the thoughts of many people who worked on the Project as they continue to feel the loss of their colleague”. Mr Cipolla says, at para 3, that the “health and safety of John Holland’s workforce is its highest priority”. Mr Cipolla says that JHPL strives to implement a “no harm” vision for its workplaces through work practices it adopts. The Airport Link, Northern Busway and Airport Roundabout Upgrade (the Project) engaged a peak number of workers in June 2011 of 1,181 workers.
77 In these reasons, I have already described comprehensively the Smoke Duct Formwork system and its elements as agreed by the parties. Mr Cipolla deposes to each of those elements and also observes, in simple terms, that the process for using the Smoke Duct Formwork to pour concrete slabs used on the Project involved the carrier moving the Table and Retractable Legs into place so that concrete could be poured over the Table. The carrier was then disengaged from the Table leaving the Table and Retractable Legs in place to allow for the pouring of the suspended concrete slab. When the concrete works were finished, the carrier moved back under the Table, the Retractable Legs were retracted and the Smoke Duct Formwork was then relocated to the next section of the Tunnel to enable the next slab to be poured. Mr Cipolla then describes the disassembling steps as set out at [35] of these reasons.
78 Mr Cipolla describes (and annexes to his principal affidavit) a series of project management documents directed to occupational health and safety issues. It is not necessary to describe all of those documents extensively in these reasons. I accept that the documents reflect a hierarchy of protocols, obligations and work practices all designed to protect the safety of workers at various workplaces during the life of the Project in relation to the range of activities likely to be encountered by workers in undertaking the Project work. It is however necessary to mention some of the documents.
79 The “Safety & Health Management Plan” (“DJC-13”) (the “SHM Plan”) describes how the TJHJV (although I will continue to use the term JHPL) proposes to “manage and control” the safety aspects of the Project and deploy ongoing project risk assessment processes to identify health and safety risks and “minimise” the prospects of those risks maturing. Clause 6 of the SHM Plan sets out the hierarchy of risk management processes deployed on the Project which are also set out at cl 8 of the “TBM Tunnel Operations Construction Workplace Plan” (the “CW Plan”) (“DJC-15”). Those processes are described at [50] of these reasons. The SHM Plan sets out “a road map on the specific practices addressed within [the] Combined Management Systems”. It represents “an integrated set of high level management plans developed for all the key areas of the Project”: p 7. It provides for “Safe Work Method Statements” to be prepared: p 5. It says that a JSEA is to be conducted for each “work activity”. The JSEA is to be completed by “managers, supervisors and work crews”: p 10. It sets out the safety management and reporting structure (p 16, 17) and the hierarchy of system documents: p 17.
80 Consistent with the SHM Plan and the CW Plan, JHPL prepared a formwork assembly and disassembly “Work Method Statement” earlier described as the Smoke Duct Formwork WMS (“DJC–32”) (see [51] of these reasons). I will refer to this document as simply the “WMS”.
81 The WMS describes the processes and procedures “required to assemble and disassemble the smoke duct formwork system”: cl 3. The scope of the WMS is to provide “guidelines, rules and identify [TJHJV] procedures to be followed by the assembly and commissioning team so as to ensure [that] safe practices are being followed at all times: cl 3. The assembly process is set out (with approximately 25 drawings depending upon component parts of particular drawings) at cl 5.3 and cl 5.4 (pp 7-15). The disassembly procedure is set out at cl 5.5. It is not supported, at that section, by any drawings. Like the assembly description, the WMS contains a paragraph, adapted however to disassembly (at DJC-32, p 16) in these terms:
The disassembly procedure developed is designed to give an overview of the process involved with conducting these works. Please note it is recognised that there are minor activities and relating issues that have not been included that will be covered and communicated in work meetings, daily pre-starts and further procedural documentation. This is to ensure that all minor activities have been acknowledged and completed in a correct and safe manner.
[emphasis added]
82 No particular descriptive detail concerning disassembly is provided in the WMS. However, at cl 5.5.1 under the heading “Disassembly Sequence” the WMS incorporates the “WAB” that “shall be followed for the disassembly of the smoke duct form inside the tunnel (Appendix 6)”. The “WAB” is the “Work Activity Briefing” and in relation to disassembly there is a “WAB checklist” (see [59] and [60] of these reasons). Appendix 6 is a two page document with approximately nine drawings. It contains a box containing a 25 point “Methodology” statement. There is no need to set out in these reasons any aspects of that Methodology statement. Neither Appendix 6 nor the Methodology statement contemplates cutting the Legs as an element of disassembly. Neither Appendix 6 nor the Methodology statement contemplates activities associated with a set of steps that would be necessary for the task of “salvage” and “re-use” of “four box sections” making up part of each “Leg Frame” by oxy-cutting the box sections from each Leg Frame so that they could later be re-used as a transport frame for a beam: see [38] and [39] of these reasons.
83 The WMS contains a safety protocol at cl 6. It provides that all construction work is to be undertaken in accordance with the SHM Plan. It also provides that, before commencing work activities, all persons are required to have completed particular identified steps. Those steps are then set out and they include understanding and signing off on “all JSEA’s” and “Toolbox Talks” relevant to the “tasks outlined in this WMS”, that is, “JSEA’s and toolbox talks that specifically apply to the tasks identified”: [emphasis added]; dot point 5, p 19, DJC-32.
84 As to both assembly and disassembly, dot points 9 and 10 of cl 6 of the WMS are in these terms:
All personnel conducting works on the smoke duct form assembly and/or disassembly must attend all toolbox talks, pre-start meetings and assist in the ongoing review process of the JSEA. All JSEA’s shall be prepared by the workforce with assistance from the Mechanical Foreman and Mechanical Engineer and delivered to the safety department prior to works commencing. A start card must be prepared by each personnel for each task conducted during the shift. The start card then must be handed in to the supervisor in charge of the works. All toolbox talks must be recorded in minutes and signed off by all attendees.
Daily pre-start meetings will be conducted for the purpose of documenting lessons learnt from the previous day, work to be completed for the day, outstanding items and highlighted issues from last shift. Furthermore, weekly co-ordination meetings will also be conducted with all key management personnel involved in the assembly and commissioning of the smoke duct gantries. The purpose of the meeting is to allow all safety issues, work completed, outstanding works and assembly/commissioning programme variances to be discussed. This meeting is designed as a forum for ongoing improvements in completing the works more effectively and safely.
85 The WMS does not describe the crew required to disassemble the smoke duct formwork although the crew required to assemble it is described at cl 5.11. The risks identified at cl 9 do not address any risks (such as a possible crush injury) that might arise out of any tasks associated with salvage and re-use of the four box sections by oxy-cutting as described at [38] and [39] of these reasons and as implemented as described in these reasons.
86 The JSEA specific to the tasks of disassembling the Smoke Duct Formwork is the document referred to at [53] of these reasons: “DJC-20”. It is an analysis of a “High Risk Construction Activity” described as “Smoke Duct Table Dismantling”. Twenty-one potential health hazards impacting on the disassembly tasks are recited in the JSEA with a box next to each one to be marked so as to indicate the relevance of that hazard to the activities being undertaken. None of the recited risks with an adjacent box address the risk implications of the specific activities comprised in the task required to give effect to the objective sought to be achieved as described at [38] and [39] of these reasons.
87 The “general” hazards (p 3) identify the danger of “falling objects” and the JSEA adopts an agreed control protocol that no person walks under “a suspended load”. The JSEA identifies 17 separate steps involved in disassembly. Falling objects are hazards for five of those steps with an agreed control protocol that no person is to walk under a suspended load. Plainly enough, as a general matter of safety in relation to what is described as a high risk construction activity, the JSEA recognises that no person is to “walk” under a suspended load. These protocols recognise the inherent arrangements in the assembly of the smoke duct formwork and its suspension. Plainly enough, workers are directed not to walk under a suspended load either in respect of assembled smoke duct formwork or suspended smoke duct formwork the subject of a disassembly set of activities.
88 The parties agree that the JSEA did not address the matters described at [54] of these reasons.
89 The WMS sets out something in the nature of a command and control hierarchy of managerial responsibilities for safety issues in relation to work activities contemplated by the WMS. The WMS emerged out of that process. Its method of development is set out at cl 6.3 of a document called the “Workplace HSE Risk Assessment Tools” (“DJC-14”) (the “Tools document”). Clause 6.3.1 provides that the WMS is a document that “details the technical/engineering/quality/safety … methodology for a particular activity” and all “High Risk Construction activities as determined in [a Work Risk Assessment] must be covered within the WMS”. Also, any “expanded process detail outlined within the WMS job steps/methodology” must be “effectively risk managed” through a “detailed risk assessment” which “must be undertaken”. Clause 6.3.2 says that the nominated “Engineer” for the identified scope of works has responsibility for the development of the WMS. The “Project Manager” has “overall authority and responsibility” for signing off the WMS and to ensure the WMS is implemented.
90 Clause 6.5 addresses the JSEA. That clause provides that the JSEA is a “field specific document” document developed to support the WMS. The assessment is designed to “consider the hazards associated with the interface of the WMS Task Steps with the specific operational working environment”. Clause 6.5 adds: “The work crew must clearly understand the methods of controlling or reducing the risk posed by those hazards and the appropriate skills required to safely carry out those tasks”. Clause 6.5.2 provides that the Supervisor in control of the works has “overall authority and responsibility for co-ordinating the development of and signing off the JSEA”: see also the SHM Plan, DJC-13 at p 28. Clause 6.5.3 provides that the JSEA must be conducted “with the work crew” and with: the Senior Project Engineer/Project Engineer (as required); the Site Engineer (as required); the Safety Co-ordinators or Safety Advisor (as required); the Environmental Co-ordinator (as required); the Superintendent; the Foreman; the Leading Hand; the Work crew; and the Sub-contractor personnel.
91 As to the timing, cl 6.5.4 provides that the JSEA should be undertaken by the work crew (which must necessarily be a reference to the work crew contemplated by cl 6.5.3) prior to the work activity commencing. As to “changes” to “work activities”, cl 6.5.4 provides that employees “must be given the opportunity to provide input as well as be briefed on any changes to work activities”. Clause 6.5.6 sets out 11 other features of the JSEA all directed to safety specific risks and risk management of hazards. Clause 6.5.6 provides that the work crew (which, as earlier mentioned is an inclusively defined term by reference to those persons and capacities described at cl 6.5.3 which is the same group of persons and capacities mentioned by Mr Cipolla at para 96 of his affidavit of 10 December 2014), “participating in JSEA development will determine activity planning, resources, equipment and general considerations for the work activity and these will be documented on the JSEA”. Also, all personnel involved in a “specific work activity” must be clear on the “safe work process for the work activity” and re-sign “for all changes” recorded to the JSEA.
92 Mr Cipolla says that this procedure for developing the JSEA relevant to these proceedings was followed. Mr Cipolla says (at para 97) that the Smoke Duct Formwork JSEA was developed by the Smoke Duct Foreman, Mr Adam Watson. It was reviewed by “all members of the Work Crew” including Mr Matulick (Leading Hand), Mr Alarcon (Mechanical Fitter), Mr Anderson (Tunneller) and Mr Beveridge (Mechanical Fitter).
93 It is not clear to me to what extent any of the other individuals set out at cl 6.5.3 of the Tools document actually contributed to the JSEA. The Smoke Duct JSEA (DJC-20) was signed by Mr Beveridge on 28 September 2011 and 13 others including Mr Matulick, Mr Anderson and Mr Alarcon. It contains an endorsement at p 8 dated 28 September 2011 signed by Mr Matulick under the heading “Any Changes to JSEA” in these terms:
TO REMOVE TABLE LEGS LEAVE CARRIER UNDER TABLE +
REMOVE LEGS. THEN HOOK UP TABLE TO CRANES.
94 There is no description in the JSEA of any of the steps or activities to be adopted to give effect to the matters set out at [38] and [39] of these reasons.
95 The parties agree that Mr Beveridge was not given specific instructions by Mr Matulick as to the methodology to be adopted for cutting the box section from the Leg Frame for each Retractable Leg (the four box sections). The only operational matter recorded in the JSEA is a direction to leave the carrier under the Table and remove the Legs and having done that, hook up the Table to the Cranes.
96 A number of forward-looking questions arise in the context of the proposed work activities and the contextual hierarchy of safety considerations. Some of the questions may be these:
1. Since the JSEA is concerned with an activity (disassembly) recognised as a high risk construction activity for the safety of workers, what degree of instructional detail would a prudent employer expect to see recited in a risk assessment document (the JSEA) concerning the activities representing changes to the operational task which involved a new task of salvaging four box sections by oxy-cutting the four box sections from each Leg Frame?
2. Is it sufficient, in terms of risk managing the safety of workers engaged in the activities for the new work, for Mr Bostock to tell Mr Matulick (on or about 27 September 2011) that a decision has been made to salvage four box sections and, at a pre-start meeting (at 6.30 a.m. on 29 September 2011), Mr Matulick will tell Mr Beveridge, Mr Alarcon and Mr Anderson that four box sections are to be cut and salvaged for re-use?
3. Should a safety risk assessment be made of the “best safety method” of going about cutting away the box sections from each Leg Frame?
4. Should the Table be supported by the carrier while the Retractable Leg removal activities are undertaken or should the formwork be laid on the tunnel floor?
5. What safety risks will attend each approach to the task?
6. Should the steelwork be elevated during the cutting? If so, what degree of elevation will be necessary to enable the cuts to be safely made? If elevated, how should the steelwork be supported during the cutting activities?
7. In what order should the cuts be made?
8. Should there be a direction to the workers to undertake a particular sequence of oxy-cutting from any particular position relative to the Table and each Leg Frame?
9. Should Mr Matulick give a direction to members of the work crew not to place any part of their arms, limbs or body under any part of the steelwork assembly during or after any or all of the oxy-cutting activities if the steelwork is at all elevated?
10. How should the structure be supported and stabilised as sections are progressively oxy-cut, if at all elevated?
11. Should an Engineer advise the work crew about the load bearing forces that will be exerted on the sections as they are progressively oxy-cut exposing the steelwork, at the point of each cut, to varying or differential particular load forces?
12. At what point in the cutting activities will the assembly be likely to crash to the floor as the cut sections compromise the load bearing integrity of the formwork?
13. Will a square beam, cut on three sides, be likely to move or rotate once three sides are cut and if so, how might the structure be stabilised?
14. Does best safety practice require the section of the steelwork assembly being oxy-cut to be “slung” or otherwise supported and stabilised during the work activities?
15. Should considerations of these kinds concerning the particular activities be addressed and weighed in the balance by a Leading Hand notwithstanding that Mr Matulick has been a qualified fitter since 1989 or to the combined assessments of Mr Matulick, Mr Beveridge, Mr Anderson and Mr Alarcon notwithstanding that these other workers have been, in the case of Mr Beveridge, a qualified fitter since 1999; in the case of Mr Anderson, employed on the Project since 2009 (holding Tickets enabling him to operate an Excavator, Forklift Truck; Bridge/Gantry Crane; CI Slewing Mobile Crane and a LS Skid Steer Loader); and in the case of Mr Alarcon, a qualified fitter since 1991, recognising, of course, that each man undoubtedly will bring their respective experience, commitment and focus to the assessment of the task and its necessary sequence of activities.
16. What is the Supervisor’s view of the best method?
17. Has Mr Matulick or any of the other men about to undertake the sequence of activities required by the task ever undertaken such activities and such a task before?
18. How should the JSEA be amended to reflect “field specific activities” to support the WMS?
19. Does the work crew “clearly understand” the method of controlling and reducing the risks of the activities in undertaking the new task as required by cl 6.5 of the WMS: see [90] of these reasons?
20. How many of the cl 6.5.3 persons should be engaged in undertaking the assessment required by the JSEA consistent with that clause of the WMS?
97 Mr Cipolla says in his affidavit that the immediate four man work crew were assisted by Mr Noel Buchanan, a rigger employed by MASS Cranes Pty Ltd (“MASS”) and Mr Andrew Smith a crane operator/dogman employed by MASS.
98 At 6.30 a.m. on 29 September 2011 Mr Matulick conducted a pre-start meeting with the four JHPL employees. The Minutes of the meeting are “DJC-11”. Mr Matulick told the four men that the four box sections making up part of each Leg Frame were to be salvaged for re-use by oxy-cutting. Mr Cipolla says at para 57 of his affidavit that he “believes” the facts to be that Mr Matulick, Mr Beveridge, Mr Buchanan and Mr Smith “discussed the fact that in order to Oxy-Cut the Leg Frames, they would extend the lower sections of the Retractable Legs from the Leg Frames” and, in order to do that, “they would tac weld the right hand side Leg Frame to the frame and Oxy-Cut a channel vertically on the right hand side of the middle Leg Frame, allowing the middle and left hand Legs to be extended by attaching them to a sling”. Mr Cipolla says that he believes that Mr Beveridge “then commenced Oxy-Cutting the upright section of the ‘box’ section of the Leg Frame”. Mr Cipolla believes that Mr Beveridge made “three cuts on the first part of the “box” section of the Leg Frame and two cuts on the second part of the “box” section of the Leg Frame”.
99 The parties agree that the box section required to be cut off was raised off the Tunnel floor ([41] of these reasons) and that when the cuts were completed the box section of the Leg Frame would separate from that part of the Leg Frame supported by the clevises and the separated box section (if not adequately supported) would fall, under its own weight, to the Tunnel floor: ([42] of these reasons).
100 Mr Beveridge in undertaking the oxy-cutting sequence of steps acted as a qualified and experienced mechanical fitter would act when acting prudently: ([45] of these reasons.)
101 However, Mr Beveridge departed from the prudent practice such a person would adopt when acting prudently, by placing his head and body under the Leg Frame in circumstances where there were no control measures in place and cuts had been made as described at [48] of these reasons. The Leg Frame collapsed at the point of the cuts pinning Mr Beveridge under the Leg Frame and inflicting severe crush injuries to him from which he died two days later.
102 At paras 105 to 110 of his affidavit, Mr Cipolla describes the protocols governing “Daily Pre-Start Meetings. At paras 111 and 112, he describes the protocols governing Toolbox Talks. At paras 114 to 140, Mr Cipolla describes the personnel having health and safety responsibilities for the Project. The disassembly of the Smoke Duct Formwork required “hot work” to be done. A Permit was required. It was obtained on 29 September 2011. It was issued by Mr Moles to Mr Matulick. It was signed by Mr Matulick, Mr Beveridge, Mr Anderson and Mr Alarcon. At paras 157 to 172, Mr Cipolla describes the training and induction programmes generally and the attendance of Mr Beveridge, Mr Anderson, Mr Alarcon and Mr Matulick at the relevant programmes. Mr Cipolla extensively describes the general history and scope of the protocols governing pre-incident safety initiatives; pre-incident site visits; the safety culture and the various expressions of that culture within the TJHJV.
103 All of this extensive material reflects a systematic and systemic focussed approach to seeking to address likely safety risks arising out of the multiplicity of construction activities associated with undertaking such a substantial Project.
104 However, it is not clear to me whether this carefully and well developed hierarchy of safety practices were brought to bear in a specific, focussed and rigorous way upon the very precise activities the subject of the changes to the JSEA (in such a way as to demonstrate a risk assessment comprehending the sorts of considerations set out at [96] of these reasons. It is not clear to me whether the risk analysis, concerning the immediate task to be undertaken on 29 September 2011 and the set of sequential activities involved in that task, went beyond Mr Bostock talking to Mr Matulick on 27 September 2011 about the salvage and re-use decision; Mr Matulick talking to the work crew at 6.30 a.m. on 29 September 2011; the work crew caucusing about the steps; Mr Matulick and Mr Beveridge making the relevant measurements; and Mr Beveridge commencing the oxy-cutting work.
105 Plainly enough, had Mr Beveridge not positioned himself under the steelwork in the circumstances described at [41] to [47] of these reasons he would not have suffered a crush injury. JHPL did not expect Mr Beveridge to put himself in that position and having regard to his experience, JHPL considered that he would not do so. Nevertheless, like all risk management analyses and especially ones directed to the preservation of the health and safety of workers, the entity undertaking the workplace activities, through its employees, has to be acutely conscious of the possibility of a risk of injury maturing even though the risk of injury might be regarded as remote and only likely to arise if a worker acts imprudently in discharging his or her duties. The possibility that a worker, even an experienced worker, might act imprudently in the course of discharging his or her duties is not so remote that an employer ought not to guard against it maturing by taking steps which would seek to mitigate the risk and minimise the possibility of injury occurring. In seeking to strike the right balance an employer needs to be especially astute to the consideration that if an imprudent step is taken by an employee in the course of discharging workplace activities and there is a possibility that the resultant injury could be catastrophic for the individual and his or her family, that consideration will condition the scope, content and thoroughness of the risk management steps deployed to seek to avoid such a result arising.
106 The JSEA, as to the changes, so as to reflect the task to be done on 28 and 29 September 2011 is about as brief as it could be. No specific instruction is reflected in the JSEA about the best method and the safest method to be adopted for undertaking the task and particularly the cutting steps. No doubt Mr Matulick and Mr Beveridge and the other members of the work crew discussed how they would go about the task. I have read the Minutes. Mr Matulick and Mr Beveridge were experienced men in their fields of skill. As I have already observed, I have no doubt that they approached the task in a focussed way and brought their experience to bear upon it. However, there remains the possibility that, in the moment, Mr Beveridge, even though he was an experienced man, might either momentarily or perhaps impulsively or simply in the course of doing the task, albeit imprudently, have taken the step of moving under the section being cut thus running the risk of being catastrophically injured once the load bearing capacity of the steelwork was compromised by the oxy-cuts.
107 This tragic incident was investigated by JHPL by a five person investigation team drawn from entities associated with the TJHJV: see para 271 of Mr Cipolla’s affidavit of 12 December 2014. None of the five participants were drawn from outside Thiess or John Holland entities. In making that observation, I do not suggest for one moment that any of the five individuals did anything other than bring an entirely professional and independent mind to bear on the causes of the incident. There may be some virtue, however, in circumstances where a worker has suffered fatal workplace injuries (catastrophic, obviously enough, for that person but also for his or her family), in having at least one highly experienced occupational health and safety specialist experienced specifically in engineering or construction works, assisting such an investigation. The investigation team set out these conclusions in their report (Annexure 15 to Ms Lowe’s affidavit):
9.3 Whilst the Smoke Duct JSEA did not expressly address the task which was being performed by Samuel Beveridge at the time of the Incident, namely, using an oxy to cut the steel formwork tables, it is clear from information obtained through discussions with the work crew that they discussed and agreed on the task sequence to be followed for the work to be performed on 29 September 2011 including the activities associated with cutting the Smoke Duct Formwork tables.
9.4 Further, it seems that the common understanding the work crew was that the cutting of the Smoke Duct Formwork tables was a low risk task as the high risk activity associated with the dismantling of the formwork from its constructed position had been finalised and the components were lying on the tunnel floor.
9.5 The cutting sequence adopted by Samuel Beveridge seemed to be consistent with that which would otherwise be adopted by other fitters. It seems that the reason Samuel Beveridge adopted the cutting sequence used was consistent with the method which would be used by experienced fitters, namely, cutting the sides and bottom first to “leave the safest cut till last” so that any potential movement could be anticipated and controlled.
9.6 It seems from observations made after the Incident that, despite dunnage being available, no dunnage or other form of support was put in place underneath the formwork legs cut by Samuel Beveridge to control the planned movement of those legs. This is not surprising however, given the method used for cutting the legs. Further, it was not anticipated by anyone that Samuel Beveridge or any other member of the work crew, would place themselves in a position underneath the formwork legs.
9.7 It is difficult to understand why Samuel Beveridge put himself in such a position but from enquiries made it seems the only explanation arises from an interrogation of the photographs of the oxy-acetylene cut by Samuel Beveridge on the left-hand outer leg of the formwork table ...
9.8 It can be seen by the photograph that the underneath weld is jagged which suggests that Samuel Beveridge may have put himself in the position he was at the time of the incident to have a look at the underneath cut at which time the cut may have split further under force resulting in the downward movement of the formwork.
[emphasis added]
108 If Mr Beveridge, as an experienced fitter undertaking the oxy-cutting activities, elected to have a look at the underneath cut in the course of carrying out the activities, an inference is probably open that he did not understand or appreciate the forces acting upon the cut such that there was a risk of the load bearing capacity of the formwork being compromised by the cuts thus resulting in “the downward movement of the formwork” upon him. It also seems that although the “common understanding” of the workers comprising the work crew was that the cutting of the Smoke Duct Formwork tables was “a low risk task”, their common understanding was incorrect because whatever imprudent steps might have occurred, the discharge of the activities actually resulted in the death of a person carrying out those activities. Moreover, JHPL has made significant changes to its work practices since the incident. Those changes are extensively described by Mr Cipolla. It is not necessary to set them out in these reasons although I mention aspects of those important changes below.
109 In order to remedy the issues identified in the report, JHPL engaged on behalf of the TJHJV, Complete Hydraulic Services Pty Ltd (“CHS”) to assist it in undertaking a review of the risks to health and safety associated with the cutting or dismantling of metal formwork or other structures. JHPL with the assistance of CHS has developed a new “WRA” entitled “Cutting and Dismantling of Structures including Metal Formwork” and in that WRA “risk rankings” have been allocated. For example, the risk rankings take into account the relativity between the possibility of the risk maturing and the outcome should the risk mature. A risk ranking of C5 means that there is a possibility that a risk will eventuate and that if it does, the outcome will be catastrophic. The WRA also contemplates assigning a “risk score” to a task. A risk score of H22 means that there is a possibility that the risk will eventuate and if it does so the consequences will be catastrophic such as a fatality. Control/risk treatments are then adopted to manage the hazards and risks associated with the various activities.
110 Comcare relies upon an affidavit of Ms Julie Lowe affirmed on 16 October 2014 (among other material). Ms Lowe is an employee of Comcare. Her title is Assistant Director and Inspector, Regional Service Queensland.
111 Objections are taken by JHPL to 13 paragraphs of Ms Lowe’s affidavit.
112 The first is para 26. At that paragraph, Ms Lowe says that on 30 July 2012 Mr Matulick provided a signed statement to Comcare in relation to the incident and attached to the statement as annexures are copies of three documents. The first is a transcript of an interview conducted between Ms Kym Tollenaere, an Inspector employed by Workplace Health & Safety Queensland (“WHSQ”) and Mr Matulick which took place on 29 September 2011. The second is a transcript of an interview conducted between Ms Allyson Lindsay, a Principal Investigator employed by WHSQ and Mr Matulick which took place on 19 October 2011. Mr Symonds, an Inspector employed by Comcare was present. So too was Mr Jamie McPherson, Mr Matulick’s lawyer. The third is a copy of a statement that Mr Matulick gave to the Queensland Police Service dated 3 February 2012.
113 It seems that Mr Matulick was represented by a lawyer. As mentioned, he signed a statement which was provided to Comcare and he chose, presumably on advice, to incorporate within the statement the three documents. At para 27, Ms Lowe quotes extracts from paras 12, 21, 22, 39 and 48 of Mr Matulick’s statement. At para 28, Ms Lowe quotes extracts from the transcript of the interview on 29 September 2011 at pp 6, 7, 8, 17 and 18. At paras 29, 30, 31, 32, and 33, Ms Lowe quotes extracts from the transcript on 19 October 2011 at pp 11, 12, (29), 15 and 16 (30 and 31), 18 and 19 (32), and 21 (33).
114 JHPL says that para 26 is not admissible on grounds of relevance. Paragraph 26, however, describes the provision of the statement and the attachments to it. It is relevant to what follows.
115 As to para 27, JHPL objects to the paragraph on the ground that it is hearsay and does not constitute an admission. There is no suggestion that the quoted passages from Mr Matulick’s statement are textually incorrect. Since the statement was proffered to Comcare by Mr Matulick, I can see no basis upon which reliance upon particular paragraphs (in his own proffered statement) ought to be refused in a proceeding to which the paragraphs are directly relevant.
116 At para 12 of the statement, Mr Matulick says that on the Airport Link Project, the JSEA’s were “computer generated but on occasions there would be work done that needed to be covered off on a JSEA”. He says that “on occasions” he was involved in preparing JSEA’s. He also says that “[u]ntil the incident of 29 September 2011 I had not received any training or instruction on the preparation of JSEA’s”.
117 At para 21 of the statement, Mr Matulick says that he produced the JSEA for the work involved in dismantling the smoke duct table formwork. He says he provided the JSEA to the work team before work commenced. He says that the work group that was to perform the work reviewed the JSEA and signed the document. He also says that he made the notation on p 8 of the JSEA described at [93] of these reasons, as to the change. He says that the notation “is made on 28 September 2011, the same day that we started the work but I believe that I made this change to the JSEA after we started”.
118 At para 22 of the statement, he says that he made the change described at [93] “as I believed it was safer for us to work on the table when it was supported by the rail mounted carrier” and “[o]nce we had removed the legs, we would then hook up the formwork to the crane and lower it to the tunnel floor” [emphasis added]. At para 39 of the statement, he says that the whole team was present for the Toolbox Talk and that he conducted the talk. He says that he “talked through the work to be performed for the day and reminded the work crew about safety”.
119 At para 48 of the statement, he says that when he spoke to Mr Beveridge about the cutting required on the extendable sections (and during the period that the cuts were being made) “I did not give him any specific instruction as to how to make the cuts, what order to make the cuts or the exact process to be undertaken”. Mr Matulick expressed the opinion at para 48 that if Mr Beveridge had any doubt about what was required “he would have spoken up and asked for assistance or instruction”. Mr Matulick says: “I did not see the need to give this much detail to Sam as I had worked with him for a considerable time and was confident that he had sufficient expertise and experience to perform this work”.
120 As to para 28 of Ms Lowe’s affidavit, JHPL says that the matters extracted from the statement of 29 September 2011 are hearsay and do not constitute an admission. Although the objection is not developed, the proposition seems to be that the statements in the interview were made to Ms Tollenaere and the objection is that Ms Lowe seeks to give hearsay evidence of the statements made in the interview (reflected in the transcript) as probative of matters relevant to penalty when, in order for the evidence to be admissible, the evidence ought to be received from Ms Tollenaere. In any event, the statements do not amount to an admission, it is said. Plainly enough the evidence put on by Ms Lowe is not put on simply as proof of the fact that a statement was made but rather as probative of matters going to penalty in the form of admissions made about relevant matters.
121 In order to adduce admissible evidence of those matters, direct evidence would be necessary from the individual to whom the statement is made. However, Mr Matulick elected to attach the transcript to his statement. He adopted it and submitted it to Comcare in connection with events surrounding the tragic death of a worker at a workplace under the control of JHPL on behalf of the TJHJV. There is no suggestion that the quoted extracts are inaccurate.
122 Since Mr Matulick has adopted and embraced the transcript, I propose to admit it.
123 In the course of the transcript Mr Matulick says that the piece of equipment that collapsed upon Mr Beveridge was not slung at the time. It was sitting on clevises as the parties admit. Mr Matulick says that when the legs are moved out it sits on the ground with enough gap to cut the beam. Mr Matulick says that he presumed that there was timber underneath the area where Mr Beveridge was cutting. Mr Matulick was asked whether, in relation to the task that Mr Beveridge was doing, “and being underneath the legs itself, have you performed the task like that before, when you’re actually underneath the legs?” Mr Matulick said that there were “different styles of different things every day” but in relation to the question of whether he had done the task the same way, Mr Matulick said that he had not done that task. When asked whether he had seen any other of the work crew dismantle the formwork in the same way that Mr Beveridge had adopted of being underneath the section, Mr Matulick said: “we haven’t cut any other of those. That was the first set we had to cut.”
124 At paras 29, 30, 31, 32 and 33, Ms Lowe sets out extracts from the statement of 19 October 2011. In the course of the transcript, Mr Matulick says that he and Mr Beveridge decided how far out the legs were to be expanded and that Mr Beveridge marked the points for the cuts on those legs. Mr Matulick repeated that he could not be sure whether there was timber or chocks underneath the frame. Mr Matulick also said that it was his view, on 29 November 2011, in terms of cutting the legs, that the JSEA covered the work. Mr Matulick said that he was not “aware” of “any other paperwork, no safe work method statements, no other JSEA that covers either the demolition of the legs or provides any further information to [his] knowledge”.
125 For the reasons already mentioned, I admit paras 26 to 33.
126 At para 34, Ms Lowe says that on 16 July 2012, Mr Moles provided a statement to Comcare and he attached as annexures to his statement copies of a transcript of an interview conducted between Mr Lindsay and Mr Moles on 10 October 2011. Mr Nathan Wilson, a Senior Inspector employed by Comcare was present at the interview. So too was Mr McPherson, the lawyer acting for Mr Moles. The statement also annexes a statement that Mr Moles had given to the Queensland Police Service dated 14 March 2012. Paragraph 34 is said to be irrelevant. I admit it as relevant to the matters at paras 35 and 36.
127 At para 35, Ms Lowe sets out extracts from paras 6, 17, 20, 21, 36 and 50 of the statement Mr Moles submitted to Comcare. At para 36, Ms Lowe sets out extracts from pp 31, 39, 41, 54 and 55 of the interview transcript annexed to that statement.
128 At para 20 of his statement, Mr Moles expressed the view that “[t]o consider every little task to be written into a JSEA would be counterproductive” and “I call writing every little task into a JSEA to a qualified tradesperson is like telling them to suck eggs”. Mr Moles added: “For instance a JSEA may consider cutting formwork but the methodology should be controlled by the experienced fitter”. As to the role of the JSEA, Mr Moles says that “[i]f I believed a system of work activity to be high risk I would develop or alter a JSEA and “I didn’t believe we needed to update the JSEA because we had already mentioned the cutting of legs in the JSEA” and “[w]e are just going to re-use part of the legs”. Mr Moles added: “Both Paul and I saw this as an insignificant step”. Mr Moles accepted that this was the first occasion on which JHPL was reclaiming the legs. At pp 54 and 55 of the interview transcript, Mr Moles was asked whether there was any information that was provided to him or the work crew or Mr Matulick “about how that work should be done - from an engineer or designer”. Mr Moles said: “[n]ot to my knowledge”.
129 I admit paras 34, 35 and 36.
130 At para 37, Ms Lowe says that Mr Bostock attended an interview on 29 October 2011 with Ms Lindsay of WHSQ. Mr Symonds of Comcare was present. So too was Mr McPherson, the lawyer for Mr Bostock. Ms Lowe makes no reference to any statement provided to Comcare by Mr Bostock. The interview with Mr Bostock seems to have been conducted on the joint footing that questions were being asked of him by Ms Lindsay and answers were given for the purpose of providing information to both Ms Lindsay and also Comcare through its officer, Mr Symonds. Mr Bostock’s lawyer was present throughout the process. I proceed on the footing that the information was provided to Comcare and that Comcare can properly put on that evidence. At para 38, Ms Lowe recites the following answer by Mr Bostock to a question. The question is not quoted and thus the context is not entirely clear. The reference to “It” at the outset of the answer has no context. Nevertheless Mr Bostock said this:
… it was never considered, we considered the risk – the risk was the working at heights, that the, you know, this TBM is a 12 metre diameter TBM, heavy lifting, you know, these 40 tonnes, 60 tonnes, 80 tonne lifts, ... quite regularly. There’s cutting, while taking those lifts. That’s the high risk. That’s all the high risk work that we considered … This unfortunately, there was a set of legs being 260 millimetres off the ground, a cut was taken, the last cut, he wasn’t shown how to take that cut, that he is an experienced guy, very experienced guy. He cut the underneath side from the inside to the outside, cut the outside from the top down – he then hopped into the inside to cut from the top down. He laid on the ground to see why and moved – he accidentally put the end of his head under the beam not knowingly. This is what we are talking about here, he, - he was not aware that his head was under the beam. Was there timber blocks under there? Yes, there were timber blocks under there. There was one timber block left on the floor. There was two right beside it, and somewhere during his work he bumped those blocks and they fell off. I’ve been doing this a long time and I know what happened. I have looked at it.
131 I admit paras 37 and 38.
132 I have considered the objections taken to the affidavit of Mr Cipolla dated 6 March 2015 and the responses to the objections. I accept the force of the responses and admit the paragraphs under challenge into evidence: paras 3 to 7.
133 During the course of the hearing, some debate arose about the admissibility of a Victim Impact Statement provided by Mr Beveridge’s wife, Mrs Jennifer Beveridge. I read the statement in Court during the course of the hearing and I have read the statement again. It is a moving document. Clearly, the loss of Mr Samuel Beveridge has had a major impact upon the life of Jennifer Beveridge and her son who was eight at the time of the incident. Mr Beveridge had celebrated his 40th birthday four days before the incident. The statement is Exhibit 2.
134 I have had close regard to the written and oral submissions of the parties. To the extent that I have not addressed each and every aspect of the submissions in these reasons, I have nevertheless taken the submissions into account.
135 As to the factors informing the exercise of the discretion, I make these observations:
(1) JHPL and the related John Holland entities within the group together, relevantly, with Thiess to the extent of the TJHJV, are significant long-standing entities in the construction and infrastructure sectors.
(2) The risk of injury to a worker in the position of Mr Beveridge in undertaking the changed activities in dismantling the Smoke Duct Formwork was a foreseeable risk having regard to the election made by either Mr Matulick or the work crew collectively to undertake the designated task by supporting the Table by the carrier and then lowering it to the floor of the Tunnel once the legs had been removed, notwithstanding that a worker in the position of Mr Beveridge, in suffering injury would act imprudently in placing a part of his body under the elevated Leg Frame.
(3) The possibility of such an imprudent act by a worker giving rise to a catastrophic injury was a risk that JHPL was required to guard against by invoking more thorough and better adapted risk analysis processes to the very particular and specific activities to be undertaken by the work crew on 28 and 29 September 2011.
(4) Even though the collection of activities were activities which fell within the manual skills of the individuals who were engaged in the cutting exercise, the scope of the activities and the associated risks required careful analysis so as to avoid a risk of injury maturing. That was especially so in circumstances where such a significant piece of heavy formwork would be worked upon by skilled tradesmen in a slightly elevated way such that there was a possibility, perhaps remote, that a worker might imprudently, in the heat of the moment, or simply in the discharge of the activities, place himself underneath the structure, compromised as it would be, in terms of structural integrity, by the very acts of oxy-cutting undertaken by the workers involved.
(5) The JSEA, which is a critical risk assessment document, ought to have more comprehensively engaged with the particular tasks the men would be required to carry out.
(6) Although it may have been “taken for granted” that a skilled tradesman in the position of Mr Beveridge would not place himself in a position where he would be at risk of injury, JHPL nevertheless had an obligation to guard against that risk in a way which authoritatively established that each of the workers undertaking the activities inherent in the task clearly understood that under no circumstances should they position any part of their body underneath the elevated structure during any part of the cutting process at all.
(7) The risk of injury in all the circumstances ought to have been foreseen and guarded against.
(8) The circumstances of the incident fall into the category where the risk of injury was foreseeable, having regard to all the circumstances I have described, even though the “precise cause” or the “precise circumstances” of the exposure to risk were not actively foreseen because of the manual skills of the individuals involved in undertaking the activities and assumptions made about the “low risk” nature of the activities being undertaken.
(9) A man died in a workplace under the control of JHPL, in part at least, because of a failure on the part of JHPL to guard against the risk of injury.
(10) I accept that JHPL has put in place a very extensive series of health and safety documents, plans and other instruments all designed in a coordinated, integrated way to prevent the risk of injury to workers maturing in the course of undertaking the multiplicity of tasks associated with the Project activities. At its peak, there were 1,181 workers employed on the Project and it is clear that the TJHJV has deployed a great deal of thoughtful and careful planning in seeking to develop a systematic set of instruments to protect the health and safety of workers and try and achieve a “no harm” culture. Unfortunately, due to the changed task and the changed collection of activities that the work crew was required to undertake on 28 and 29 September 2011, those processes ultimately failed Mr Beveridge.
(11) Practicable precautions could have been taken by JHPL in discharge of an obligation to be vigilant which might have reinforced in the mind of Mr Beveridge the imprudence of placing any part of his body underneath the structure especially in circumstances where the very nature of the work involved oxy-cutting the steel sections and compromising the load-bearing capacity of the structure in such a way that ultimately it might fall to the floor of the Tunnel as in fact it did in the way in which the JHPL investigation team concluded. Had the imprudence of placing any part of the worker’s body underneath the structure at any time during any part of the activities been reinforced in Mr Beveridge’s mind notwithstanding his trade skills and his experience, he may not have acted imprudently and he may not have suffered a crush injury leading to his death and the ongoing consequences for his family.
(12) The gravity of the consequences of the incident is an important consideration. I accept, however, that the gravity of the consequences of the accident does not “of itself” dictate the seriousness of the contravention. The contraventions are admitted and they are set out at [64], [65] and [66] of these reasons.
(13) The contraventions are objectively serious.
(14) The conduct was not deliberate. JHPL had taken, as already mentioned, extensive systematic steps to try and guard against a risk of injury to workers engaged in the multiplicity of activities required to be undertaken as part of the Project works. These steps also reflect a well-established culture of compliance in seeking to meet the requirements of the law relating to the health and safety of workers undertaking workplace activities under the control of JHPL.
(15) JHPL has put in place a process to address the risks associated with dismantling activities which involve oxy-cutting steps, since the incident. They have done so with the assistance of external consultants and there is an entirely new protocol around those arrangements.
(16) Key aspects of the exercise of the discretion involve weighing in the balance the way in which the public interest is served by imposing a penalty which addresses general deterrence and specific deterrence. In the context of the very particular facts of this case, it seems to me that specific deterrence does not weigh heavily in the balance because although there were contraventions, as admitted, there can be no doubt that JHPL, prior to the incident, had established a hierarchy of instruments and protocols which sought to address and risk manage possible risk of injury to the health and safety of workers and after the incident, a series of new protocols were put in place designed to address the report arising out of the investigation and recommendations made to JHPL by the consultants. That is not to say that, however, specific deterrence has no role to play in determining the amount of the penalty. There was a specific failing by this specific employer. I will not repeat here the observations I have made in these reasons or the remarks set out at subparas (2) to (6) and (10) and (11) above. General deterrence has an important role to play because the community has a direct interest in ensuring adherence to the social and industrial norms contained in legislation enacted by the Parliament designed to protect the health and safety of citizens who find themselves engaged as workers in activities at workplaces where they will be exposed to risk of injury. Everything that can be reasonably and practicably done to protect the health and safety of workers in their working environment and workplaces must be done so that they can return home from their workplaces to their families, uninjured.
(17) The maximum penalty is $242,000. I have taken the maximum penalty into account as the expression of what might be regarded as a penalty appropriate to the worst case of contravention.
(18) JHPL has admitted the contraventions. It has co-operated fully with Comcare in the conduct of the investigation. It has provided information and documents to Comcare as requested. It
(19) made its employees available for interviews by representatives of Comcare. It has made admissions reflected in the SOAF. It supports the making of a declaration as to the agreed contraventions. It has agreed to pay Comcare’s costs.
136 Having regard to all of these considerations, it seems to me that an appropriate penalty is $170,000.
137 The Court will make the declarations sought by the parties.
138 The respondent will be ordered to pay the applicant’s costs of and incidental to the proceeding.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. |
Associate:
