Coggins v NQ Roofing Group Pty Ltd [2011] ICQ 28

CITATION: Dean Allan Coggins AND NQ Roofing Group Pty Ltd (C/2011/28) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate Dean Allan Coggins AND NQ Roofing Group Pty Ltd (C/2011/28) PRESIDENT HALL 18 October 2011 DECISION [1] On 20 January 2010, Dean Allan Coggins, a Public Officer within the meaning of s. 142A of the Justices Act 1886 and an Inspector duly appointed under the Workplace Health and Safety Act 1995 (the Act), made a Complaint before a Justice of the Peace that, on 3 June 2009 in the Magistrates Court District of Cairns, NQ Roofing Group Pty Ltd, being a person on whom was imposed a workplace health and safety obligation under the Act, failed to discharge the obligation contrary to s. 24 of the Act. The obligation said not to have been discharged is the obligation imposed by s. 28 of the Act. Particulars were provided: "Particulars It is alleged that the defendant's workers or other persons were not free from risk to their health and safety arising out of the conduct of its business or undertaking [s. 28(2)]. Other: Robert Alan MOORE Workplace: Lot 14 'The Entrance', Kewarra Beach Qld 4879 Business or undertaking: Construction Risk: The risk is the risk of injury, including the risk of death or grievous bodily harm injuries to Robert Alan MOORE Hazard(s): The source of the risk emanates from: (1) Working at heights and/or (2) The system of work to perform roof work.". A circumstance of aggravation was pleaded, viz., that the breach caused grievous bodily harm injuries to Robert Allan Moore. Neither at first instance nor on the Appeal has there been any dispute that NQ Roofing Group Pty Ltd was burdened by the obligation imposed by s. 28 of the Act; nor any dispute that Mr Moore was an "other person" for the purposes of s. 28 of the Act. [2] The Industrial Magistrate's summary of the "factual background" is uncontentious and I adopt it: "[1] On 3 June 2009, Robert Moore was working on a house under construction in a new housing estate called 'The Entrance' at Kewarra Beach, Cairns. Mr Moore's job was to install the gutter, fascia and flashings on the house, on behalf of the company NQ Roofing Group Pty Ltd. At the time of performing the work, the roof had not been completed and only timber trusses were in place forming the framework for the roof. While working on the installation of a type of flashing known as a 'valley', which sits at the joint between two descending parts of the roof, Mr Moore fell through the gap between the trusses. He landed on the concrete slab floor of the house, suffering severe injuries which have rendered him a paraplegic. [2] Mr Moore fell because there was a large enough gap between the roof trusses such that a man could fall between them. Horizontal timber battens that would run at right angles to the trusses had not yet been installed. Such battens would not only have provided a base for the installation of the tiled roof, but also made the gaps on the roof small enough so that a man could not fall between the gaps. [3] A separate company was responsible for the installation of the tiled roofs and the battens between the trusses. This company fell behind during the course of construction, such that Mr Moore was ready to do his part of the work on the roof before the battens had been installed. Mr Moore proceeded notwithstanding the absence of any fall prevention system. -- 1 of 8 -- 2 [4] Mr Moore was an experienced installer of roofing and had sub-contracted to NQ Roofing for about 15 years at the time of the accident. NQ Roofing has been charged with the offence of failing to discharge the obligation imposed upon the company to ensure Mr Moore was free from the risk to his health and safety while the company was engaged in the conduct of its business, with the added circumstance of aggravation that the failure caused grievous bodily harm to Mr Moore. [5] NQ Roofing has defended the charge asserting that while there was a failure, it is absolved from criminal responsibility by the steps it had taken to ensure the safety of Mr Moore, and by the fact Mr Moore caused his own injury through his own wilfully reckless work practice on this occasion. It was argued that NQ Roofing is not guilty of the offence, or alternatively, is not guilty of the circumstance of aggravation of having caused grievous bodily harm to Mr Moore.". [3] The Complaint was heard in the Industrial Magistrates Court at Cairns on 11 and 12 May 2011. By a decision of 15 June 2011, NQ Roofing Group Pty Ltd was found not to be guilty and discharged. The Complainant now Appeals to this Court. [4] In short form, the Industrial Magistrate found that NQ Roofing Group Pty Ltd had made out each of the defences at s. 37(1)(a), s. 37(1)(b)(i) and (i) and s. 37(2) of the Act. In those circumstances, it is convenient to commence by republishing s. 37 of the Act: "37 Defences for div 2 or 3 (1) It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2 or 3 for the person to prove - (a) if a regulation or ministerial notice has been made about the way to prevent or minimise exposure to a risk - that the person followed the way prescribed in the regulation or notice to prevent the contravention; or (b) if a code of practice has been made stating a way or ways to manage exposure to a risk - (i) that the person adopted and followed a stated way to prevent the contravention; or (ii) that the person adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention; or (c) if no regulation, ministerial notice, or code of practice has been made about exposure to a risk - that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention. (2) Also, it is a defence in a proceeding against a person for an offence against division 2 or 3 for the person to prove that the commission of the offence was due to causes over which the person had no control. (3) In this section, a reference to a regulation, ministerial notice, or code of practice is a reference to the regulation, notice, or code of practice in force at the time of the contravention.". [5] The Grounds of Appeal go to every aspect of the Industrial Magistrate's decision: "The grounds of the appeal are that the Industrial Magistrate erred in law in holding: (a) that section 318, inter alia, of the Workplace Health and Safety Regulation 2008 ('Regulation') was a regulation made about the way to prevent or minimise exposure to a risk under section 37(1)(a) of the Act; (b) alternatively, that the respondent followed the way prescribed in the said Regulation to prevent the contravention; (c) that the respondent adopted and followed a stated way under the Risk Management Code of Practice 2007 to prevent a contravention under section 37(1)(b)(i) of the Act, namely that it implemented the following control measure as set out in a work method statement: 'Where trusses are fixed into place and used for support are spaced at greater than 600mm centres, workers will perform a check & ensure that the risk has been controlled by fixing an intermediate ceiling batten, placed at right angles to the truss at no more than 450mm centres.'; and (d) that the commission of the offence was due to causes over which the respondent had no control under s. 37(2) of the Act.". -- 2 of 8 -- 3 The Complainant seeks an order that the Industrial Magistrate's decision be set aside, the conviction and sentencing of NQ Roofing Group Pty Ltd for the offence charged and orders for costs incurred in the Industrial Magistrate's Court, including investigation costs. [6] There is a relationship between s. 28 of the Act and s. 318 of the Workplace Health and Safety Regulation 2008 (the Regulation). Section 318 of the Regulation applies to a "relevant person". Section 318 is contained in Part 20, Division 3, Subdivision 10. The definitions at s. 258 of the Regulation are unhelpful. However, the "general" definition section, viz., s. 3, refers one to Schedule 18 of the Regulation. At Schedule 18 the definition of "relevant person" is "see section 28(1) of the Act". However, conceding the relationships between s. 28 of the Act and s. 318 of the Regulation, s. 318 does not appear to be about the "way to prevent or minimise exposure to a risk" which, if followed, will arm a putative defendant with a defence under to s. 37(1)(a) of the Act. The power to make regulations arises under s. 38 of the Act which provides: "38 Regulations (1) The Governor in Council may make regulations under this Act. (2) A regulation may - (a) deal with matters of an administrative nature; or (b) prohibit exposure to risk; or (c) prescribe ways to prevent or minimise exposure to risk; or (d) prescribe - (i) that particular work is high risk work or a particular activity is a high risk activity; and (ii) that high risk work or a high risk activity may be performed only by particular persons having appropriate authority, as prescribed under the regulation, to perform the work or activity. Examples of matters under paragraph (a) - 1 notification of building and construction work 2 registration of registrable plant Example of paragraph (b) - prohibiting the use of certain hazardous substances Examples of paragraph (c) - 1 preparing and providing a material safety data sheet for a hazardous substance 2 providing certain workplace amenities (2A) Without limiting subsection (2)(d)(ii), a regulation under that subsection may provide that the work or activity may be performed only by a person who is at least 18 years. (2B) The following is not unlawful discrimination on the basis of age for the Anti-Discrimination Act 1991 - (a) a provision of a regulation made under subsection (2)(d) that provides that work prescribed to be high risk work, or an activity prescribed to be a high risk activity, may be performed only by a person who is at least 18 years; (b) the doing of an act that is necessary to comply with, or that is specifically authorised by, a provision mentioned in paragraph (a). (2C) Except as provided for under subsections (2A) and (2B), a regulation made under subsection (2)(d)(ii) can not authorise an act that is unlawful under the Anti-Discrimination Act 1991. (3) A regulation may - -- 3 of 8 -- 4 (a) prescribe offences for a breach of a regulation; and (b) fix a maximum penalty of not more than 40 penalty units for the breach. (4) A regulation may declare something to be a workplace health and safety obligation imposed on a person for this Act. (5) A regulation may prescribe fees payable under this Act including fees for the following - (a) notification of building and construction work; (b) registrations, including registrations for registrable plant and registrable plant designs; (c) certifications, including certifications for prescribed occupations; (d) appointments, including appointments as accredited providers.". [Emphasis added.] Section 318 of the Act does not present as a regulation made pursuant to s. 38(2)(c) of the Act; compare Part 15 of the Regulation which commences at s. 183 with the provision: "183 Ways to prevent or minimise risks prescribed (1) This part prescribes ways of preventing or minimising exposure to the risk of death, illness or injury associated with conducting recreational snorkelling as part of a relevant person’s undertaking in the circumstances mentioned in this part. (2) A person may discharge the person’s workplace health and safety obligation for exposure to the risk in the circumstances mentioned in this part only by following the prescribed ways. (3) This part does not deal with all circumstances that may expose a person to risks associated with conducting recreational snorkelling as part of a relevant person’s undertaking.". Rather, s. 318 of the Regulation presents as a regulation made pursuant to s. 38(4) of the Act. Section 318 of the Regulation provides: "318 Risk of fall of at least 3m in housing construction work or at least 2m in other construction work or construction work on roof with a slope over 26° (1) This section applies to - (a) construction work that is housing construction work during which a person could fall at least 3m; or (b) construction work that is not housing construction work during which a person could fall at least 2m; or (c) construction work on a roof, or partly completed roof, surface with a slope over 26º. (2) However, this section does not apply to work if a person could fall from - (a) a ladder or fixed ladder; or (b) a platform supported by trestle ladders; or (c) scaffolding that the person is erecting or dismantling; or (d) an area near a ladder that the person needs to use to get on or off the ladder. (3) A relevant person who intends to do the construction work must, before the work starts, use control measures - (a) to prevent the person falling any distance; or Examples of control measures to prevent the person falling - • edge protection -- 4 of 8 -- 5 • a fall protection cover placed over an opening • a travel restraint system (b) if prevention is not practicable - (i) to arrest the person’s fall; and (ii) to prevent or minimise the risk of death or injury to the person when the fall is arrested. Examples of control measures to arrest a person’s fall - • a fall arresting platform • a fall-arrest harness system • an industrial safety net (4) If a control measure mentioned in this subdivision is used, the control measure, and the use of the control measure, must comply with this subdivision. (5) However, a fall arresting platform used under subsection (3)(b) need not comply with section 322 if the fall would be internal within formwork the person is erecting or dismantling. (6) Subsections (3) and (4) are workplace health and safety obligations for the Act.". [Emphasis added.] Compliance with s. 318 of the Regulation did not provide NQ Roofing Group Pty Ltd with a defence pursuant to s. 37(1)(a) of the Act. Non-compliance with s. 318 of the Regulation would have exposed NQ Roofing Group Pty Ltd to the risk of a prosecution additional to the risk of prosecution for breach of the obligation at s. 28 of the Act. (I quite take the point raised by Mr Sapsford of Counsel for the Complainant that, on a prosecution for breach of s. 318 of the Regulation, the Complainant would have carried the burden of proof (on the criminal standard) on all elements). Such a prosecution may not have been attractive and may, perhaps, have triggered a challenge to s. 38(4) of the Act. [7] In any event, if the analysis at [6] be incorrect and compliance with s. 318 of the Regulation provides NQ Roofing Group Pty Ltd with the defence at s. 37(a)(a) of the Act, NQ Roofing Pty Ltd did not comply with s. 318 of the Regulation. The authorised officers of NQ Roofing Group Pty Ltd resolved to meet the risk to Mr Moore's and others' safety by adopting a system of work which complied with s. 318 of the Regulation, committed the decision to writing, made the decision available to all persons likely to be affected by the hazard (including Mr Moore) and reminded Mr Moore not to attempt to work on the roof until the battens had been installed. However, neither the battens nor any other control measure to prevent or arrest a fall had been installed or implemented. Not a nail had been struck. Nothing had been done. [8] The matters briefly rehearsed at [7] are critical to the Ground of Appeal labelled (c), see [5] above. It is not disputed that in the absence of an industry-specific code, the generic code of practice titled "Risk Management Code of Practice 2007" was the relevant code of practice for the purposes of s. 37(1)(b)(i) of the Act. Further, it is conceded for the Complainant that NQ Roofing Group Pty Ltd had identified the hazard and assessed and prioritised the risks, i.e. that the first two steps of the five steps required by the Code had been taken. However, the parties are not ad idem about the determination and implementation of control measures. As to the "determination of control measures", the Industrial Magistrate found: "Step 2 - Determination of control measures: [24] The work method statement devised by NQ Roofing was done in conjunction with an independent safety consultant. It identifies 'risk control' as ensuring fall protection is erected to a safe standard with adequate … fall prevention systems in place (p. 9 Exhibit 7). The fall protection/fall prevention system is provided for at page 4 of the work method statement under the heading 'General Safety Rules & Requirements' and stipulates: 'Where trusses are fixed into place and used for support are spaced at greater than 600mm centres, workers will perform a check & ensure that the risk has been controlled by fixing an intermediate ceiling batten, placed at right angles to the truss at no more than 450mm centres.' [25] This was the control measure provided for by NQ Roofing and it is argued in defence of the company that this was the appropriate control measure for the type of work conducted by Mr Moore as it would prevent or arrest a fall from height (as set out in paragraphs 14 to 15 above). It is clear that this -- 5 of 8 -- 6 control measure is also in keeping with guidance material referred to: 'Domestic construction - Controlling Falling risks while Working on Roof Framing' (Exhibit 13) and 'Enforcement Not No 23 - Controlling the risk of falling while working on roof framing' (Exhibit 15). These documents have been tendered by agreement between the parties, and relied upon by NQ Roofing. [26] It is common ground that valley flashings fall within the category of roof sheets that could be fixed at heights. Therefore, these requirements would have applied in the present case. [27] The work method statement, in its generalised form, was adopted by all relevant parties to the construction of the many tiled roofed dwellings in the development being undertaken. This is permissible pursuant to s. 260(3) WHSR. I reject the argument that there ought to have been a more specific work method statement applicable to the installation of tiled roofs. In the end, I accept the evidence of Mr Mariot [sic Marriot] over that of Mr Moore as it related to the significance of any distinction to be made between tiled and metals roofs. In my view, it made no difference what the roofing material was to be: the vital part of the work method statement was that if the distance between the trusses was more than 600mm, then there must be intermediate ceiling battens installed prior to the installation of the flashings. The evidence was that where tiles were to be applied to the roof, the battens would be installed as a matter of course as they would also be the foundation upon which the tiles would be fastened, therefore the distance between the trusses would be reduced to a safe level, and the control measure implemented prior to the installation of the valley flashings. [28] Any distinction that may occur, relates to when gutter and facia are to be installed, which calls for a completely different method of fall prevention and is of no relevance to the present proceedings. It is also noteworthy that the installation of flashing on metal roofs would be done by persons responsible for the installation of the metal roof. Therefore, there would be no need for Mr Moore to be involved in the installation of valleys on anything other than a tiled roof and the effect of the work method statement ought to have been clear to him. [29] It is further noted that ultimately Mr Moore accepted what was meant by the work method statement and that this would have been the ideal fall prevention system for the scenario he experienced. Therefore, in the end I am satisfied that there has been an appropriate determination of the control measure.". I am not disposed to interfere with those findings. Indeed, to the extent that the preference for the evidence of Mr Marriot over Mr Moore was based on findings about credit by a judicial officer who had the benefit of seeing and hearing the witnesses, it would be inappropriate to do so, compare Devries v Australian National Railways Commission1 at 479 per Brennan, Gaudron and McHugh JJ. Further, it seems to me that Messrs Marriot and Frogget had long ago decided on the only acceptable system of work and did not visit the matter for the first time in evidence. The problem is about implementation. [9] One may accept the Industrial Magistrate's findings (at [30]): "Step 4 - Implementation of Control Measures [30] The evidence given during the course of the hearing established that NQ Roofing implemented this control measure by including it in the work method statement (Exhibit 7) and communicating this to Mr Moore (and other sub-contractors) by:- (i) Having Mr Moore sign a 'Periodic Subcontract Agreement' with NQ Roofing each year which contained conditions that required Mr Moore to comply with all reasonable instructions of the builder (NQ Roofing) with respect to workplace health and safety AND to operate in accordance with workplace health and safety legislation (Exhibit 3); (ii) Having Mr Moore supplied with a copy of the work method statement each year at the time of renewing the sub-contract agreement, including at the time of the most recent renewal on 1 February 2009. This document reiterated the need for Mr Moore to have general knowledge of occupational health and safety, an ability to work within a safe working environment, to complete a safety induction and retain a 'blue card' when working on site (Exhibit 4); (iii) Having Mr Moore sign a 'Fascia & Gutter Fixer' declaration (Exhibit 20) with the relevant part of the work method statement attached on 18 March 2009; (iv) Providing the work method statement to the company to which NQ Roofing had sub-contracted (H&S Vision); (v) Having Mr Moore undergo a site-specific induction with regard to house under construction (Exhibit 5 and point 7 of the Agreed Statement of Facts Exhibit 19).". 1 Devries v Australian National Railways Commission (1992 - 1993) 177 CLR 472 -- 6 of 8 -- 7 However, I am quite unable to accept the view propounded by the Industrial Magistrate at [31], viz.: "[31] In my view, the steps undertaken by NQ Roofing were appropriate and adequate to implement the control measures set out tin the work method statement.". On this occasion, the control measures identified in the work method statement were not put into effect. There was an hiatus during which the battens were not in place and Mr Moore was on site waiting to perform his subcontract. Only administrative controls lay between Mr Moore and the risk of injury. Further, there was no monitoring system put in place to identify and respond to failures in the administrative controls. Ironically, NQ Roofing Group Pty Ltd's General Manager volunteered in evidence that monitoring was as critical as selection and initiation of a system. The work to be performed by Mr Moore was estimated to take about 20 minutes. It was foreseeable that NQ Roofing Group Pty Ltd's on-site supervisor, who had development-wide responsibilities, would not be necessarily available to observe Mr Moore breach instructions which had been brought home to him and which Mr Moore acknowledged in evidence to be common sense. The truth is, that a safety scheme (which would have worked), was not implemented. It is for the obligation-holder to determine how to discharge his obligation. Should the obligation-holder, in the alternative, seek to rely on the defence at s. 37(1)(b)(i) of the Act, the obligation-holder must prove compliance with the code of practice. Here that involved implementation, monitoring and review. NQ Roofing Pty Ltd failed to make out its defence. [10] On balance, the Industrial Magistrate did find (in the alternative) that the defence at s. 37(i)(b)(ii) of the Act had been made out. (Arguably because the generic "Risk Management Code of Practice 2007" adds nothing to s. 22(2) of the Act, s. 37(1)(b)(ii) of the Act was the relevant defence.) Whilst there is scope for argument, the Grounds of Appeal raise the issue about whether it has been fully argued and the proper course is to deal with the issue. [11] I accept that if the control measure identified in the work method statement had been implemented, the defence at s. 37(1)(b)(ii) would have been made out. However, as emphasised at [9], the control measure was not implemented. I adhere to the view expressed most recently in Abigroup Contractors Pty Ltd v Newman2: "The Acting Industrial Magistrate's finding that the Defendant had "decided on control measures to prevent or minimise the level of risks" is said to be inconsistent with the finding that the Defendant had not "identified risks that may result because of the hazards". There is an inconsistency. However, the inconsistency arises out of the rigidity with which the Acting Industrial Magistrate separated out the five steps. For the purposes of exposition, the Acting Industrial Magistrate treated each of the steps as separate and discrete. I understand why it was to avoid unnecessary turgidity of style that the Acting Industrial Magistrate would take that approach. However, the steps are not separate and discrete. The steps overlap. When the Acting Industrial Magistrate concluded that the Defendant had "decided on control measures to prevent or minimise the level of risks", His Honour was concluding that the Defendant had decided on steps that would prevent or minimise the risks of falling through the "floor penetrations" if the control measures were implemented. The measures, one should add, were sufficiently comprehensive to grant protection against unidentified risks. However, having found that the control measures decided upon by the Defendant were "adequate", the Acting Industrial Magistrate went on to find that the control measures had not been implemented. Control measures which are not implemented are of no consequence. The truth is that, once it is recognised that the control measures were not implemented, it must also be recognised that the control measures were not "adequate" in that the measures did not contain a system to ensure their implementation. Indeed, because the obligation imposed by s. 28(1) is continuing the five steps, which are actually the five steps at s. 22(2) of the Act, are best seen as not merely overlapping but as moving. If the Defendant had shouldered the ongoing obligation to "identify risks that may result because of the hazards", the Defendant would have discovered that the control measures had not been implemented and would have been compelled to undertake again the task of deciding on control measures to prevent or minimise the level of risks.". Perhaps more succinctly, one might say that a defendant who does not monitor a control measure to ensure observance does not exercise proper diligence. (Supervision, or lack of it, I should add was specifically raised at first instance.) Howsoever all of that may be, it is clear that the obligation to take "reasonable precautions" is but one element at s. 37(i)(b)(ii) of the Act. The Industrial Magistrate's conclusions that NQ Roofing Group Pty Ltd had taken "all reasonable steps to make sure [the work method system] was used by those performing work for the company", takes NQ Roofing Group Pty Ltd but part of the way. I find myself unable to accept the Industrial Magistrate's observations at paragraph [47]: "[47] The only additional step that could have potentially improved the safety of the particular work place was to have the supervisor on-site through out all of the work undertaken by the installers of the gutter, facia and flashings. But, of course, this would be completely unreasonable and unworkable 2 Abigroup Contractors Pty Ltd v Newman (2008) 188 QGIG 45 at 49 -- 7 of 8 -- 8 and ignore the fact that workers also have an obligation to ensure they comply with the workplace requirements that are in place for their protection.". It is true that Mr Moore had obligations under the Act. A prosecution of Mr Moore may have been successful. (Given the gentlemen's injuries, I can understand why a complaint was not made.) However, a person burdened by the obligation at s. 28 of the Act is not entitled to rely on workers and subcontractors ensuring their own safety. On the contrary, the obligation-holder is required to protect workers and contractors even from risks arising from their own misbehaviour. It was not unworkable to have a dedicated supervisor at Lot 14 during the hiatus. It would have involved costs (though the evidence is unhelpful on quantum). Safety is expensive. Doubtless, it is partly for that reason that s. 24 of the Act provides for maximum fines of great magnitude for those who fail to discharge obligations imposed upon them by the Act. [12] I allow the Appeal and set aside the Orders of the Industrial Magistrate. It will be necessary to take submissions on sentence. As a matter of prudence, I shall also hear any submissions about the alternative defence referred to at paragraph [58] of the Industrial Magistrate's reasons for decision. Dated 18 October 2011. D.R. HALL, President. Released: 18 October 2011 Appearances: Mr S.P. Sapsford and with him Mr G. Lee of Legal and Prosecution Services Unit, Department of Justice and Attorney-General, instructed for the Appellant. Mr R.P. Devlin SC, instructed by Mr D. McKinstry of Williams Graham Carmen Solicitors, for the Respondent. -- 8 of 8 --