Coggins v NQ Roofing P/L [2011] QMC 13

MAGISTRATES COURTS OF QUEENSLAND CITATION: Coggins v NQ Roofing P/L [2011] QMC 13 PARTIES: DEAN ALLAN COGGINS (complainant) v NQ ROOFING GROUP PTY LTD (defendant) FILE NO/S: MAG26106/10(9) DIVISION: Magistrates Court PROCEEDING: Complaint ORIGINATING COURT: Magistrates Court at Cairns DELIVERED ON: 15 June 2011 DELIVERED AT: Cairns HEARING DATE: 11 May 2011, 12 May 2011 MAGISTRATE: Pearson SJ ORDER: I find the company not guilty of the offence. CATCHWORDS: INDUSTRIAL LAW - WORKPLACE HEALTH AND SAFETY – PROSECUTION – INJURY IN THE WORKPLACE – cause of injury out of employer’s control COUNSEL: P Major for complainant D McInstry for defendant SOLICITORS: Workplace Health and Safety Queensland for complainant Williams Graham Carman Solicitors for defendant Factual Background: [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. -- 1 of 9 -- 2 [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. [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. Relevant Law: [6] NQ Roofing has been charged with an offence pursuant to s 24 of the Workplace Health and Safety Act 1995 which states that a person on whom a workplace health and safety obligation is imposed must discharge the obligation. The section goes on to specify various circumstances of aggravation to this offence which include the causing of grievous bodily harm to the injured person. [7] The act imposes an obligation on all persons (which includes companies) conducting a business or undertaking to ensure the safety of their workers, and any other person, is not affected by the conduct of the business (s 28). There is no dispute in this case that NQ Roofing bears this obligation and that Mr Moore was an “other person” to whom the obligation was owed. [8] S 28 further states that the obligation is discharged if persons are not exposed to risks to their health and safety arising out of the conduct of the relevant business. The ways in which the obligation may be discharged are set out in s 29 and include providing and maintaining a safe and healthy work environment AND providing information, instruction, training and supervision to ensure health and safety. [9] The act goes on to stipulate that workplace health and safety is ensured (as is relevant here) when persons are free from injury caused by the workplace or work activities (s 22). [10] Defences to breaches of the act are provided for in s 37 and include: -- 2 of 9 -- 3 (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 the exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention. [11] It is also a defence for a person to prove that the commission of the offence was due to causes over which the person had no control (s 37(2)). [12] It is well settled by case law that the obligation imposed in these circumstances is absolute, and that a failure to discharge the obligation is established by the fact injury is sustained, as it was in the present case by Mr Moore. Therefore, the case is to be determined on the basis that NQ Roofing has failed to discharge the obligation it owed to Mr Moore and should be found guilty of the offence with which it is charged, unless I am satisfied, on the balance of probabilities, that a defence is made out (s 37). Possible Defences: S 37(1)(a): Is there a regulation or ministerial notice about the way to prevent or minimise exposure to a risk? Did NQ Roofing follow the way prescribed in the regulation or notice to prevent the contravention? [13] It has been argued on behalf of NQ Roofing that the company had used a control method prescribed by the Workplace Health and Safety Regulations 2008 (WHSR) with regard to high risk construction activity (s 260, s 261) and as required for the prevention of the risk of fall of at least 3m in housing construction work (s 318). [14] S 318 of WHSR (Exhibit 12) relevantly stipulates that a person (in this case NQ Roofing), who intends to do construction work, where there is a risk of falling at least 3m, must use control measures to prevent a fall or to arrest the person’s fall and prevent or minimise the risk of death or injury to the person when the fall is arrested. The specific control measures provided for in s 319 to s 324 of the WHSR (and reflected in the “Work at Heights” guidance material – Exhibit 14) are said by the defence to be inapplicable to the type of work being performed by Mr Moore. [15] This assertion is supported by the evidence of Mr Mariot and Mr Froggatt who gave evidence for NQ Roofing: Mr Mariot was the General Manager of NQ Roofing with a significant history of working in the roofing construction industry. Mr Froggatt was the site supervisor employed by NQ Roofing who also had a lengthy work history in the industry. Mr Mariot was a particularly impressive witness with regard to his credibility and also industry knowledge. Each witness stated that the most appropriate control measure in the present circumstances was the fixing of horizontal timber battens at right angles to the trusses at not more than 450mm centres. These battens were referred to as “intermediate ceiling battens”, however it was explained that in this context “ceiling” denoted a timber batten rather than one -- 3 of 9 -- 4 forming part of the ceiling. The measure described by Mr Mariot and Mr Froggatt would prevent or arrest a fall by a person working of a roof installing valley flashing. [16] It was argued by NQ Roofing that this control measure was appropriate and rendered a mandatory requirement of all persons performing the relevant kind of work for the company as it was contained in the company’s work method statement. This would, therefore, satisfy s 259, s 260 and s 261 and, therefore, s 318 WHSR. [17] A decision with regard to appropriateness of this will ultimately depend on an assessment of the appropriateness and adequacy of the control measure provided for in the work method statement. NQ Roofing has asserted the defence under this subsection concurrently with the defence pursuant to s 37(1)(b) and made the ultimate submission that the control measure in the work method statement was appropriate and adequate, therefore satisfying (1) the regulation under WHSR, or alternatively (2) the code of practice as set out below. I will, therefore, undertake a consideration of the adequacy of the control measure (paragraphs 19 to 44 below) and conclusions will follow. S 37(1)(b): Is there a code of practice stating a way or ways to manage exposure to a risk? Did NQ Roofing: - (i) Adopt and follow a stated way to prevent the contravention; or (ii) Adopt and follow another way that managed the exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention? [18] The Risk Management Code of Practice 2007 (Exhibit 10) provides that in cases where there is no regulation, ministerial notice or code of practice about a risk, a person discharges their obligation by (a) “Adopting and following any way to discharge the person’s workplace health and safety obligation for exposure to the risk; AND (b) Taking reasonable precautions, and exercising proper diligence, to ensure the obligation is discharged.” [19] NQ Roofing argues that it undertook a process of risk management, in accordance with the five step process provided for under the RMCP with the results reflected in their work method statement and additional work practices. [20] The prosecution asserts that while the process may have been undertaken, the resulting work method statement was ambiguous, generic and related more to the installation of metal roofing rather than tiled roofs. Therefore, with regard to the specific house under construction where the accident occurred, NQ Roofing failed to provide for an appropriate control measure and the defence must fail on this basis. [21] I have had the opportunity to read the work method statement and to consider the evidence given by Mr Moore, Mr Mariot and Mr Froggatt regarding their understanding of the work method statement. In the end, based on their evidence I am satisfied of the following with regard to the five step process: Step 1 - Identification of hazard: -- 4 of 9 -- 5 [22] The work method statement reflects the proper identification of the risk of “slips & fall from heights” as it relates to “Fixing roof sheets and Insulation” under the sub heading of “Fix flashings, scribe ridge & screw off roof sheets” (page 8 Exhibit 7). Step 2 - Assessment and prioritisation of risks: [23] The work method statement properly identifies the risk level as “high” (p 8 Exhibit 7). Step 3 - 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 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 Note 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 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. -- 5 of 9 -- 6 [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. 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). [31] In my view, the steps undertaken by NQ Roofing were appropriate and adequate to implement the control measures set out in the work method statement. Step 5 - Monitoring and Review: [32] NQ Roofing employed a supervisor, Mr Froggatt whose job involved undertaking a pre-work site inspection to assess, among other things, the safety needs of the site. Mr Froggatt then undertook ongoing supervision of work performed by NQ Roofing at “The Entrance”. Mr Froggatt said he attended the site usually once each day or “every other day” that work was being undertaken by contractors on behalf of NQ Roofing. It was asserted by Mr Froggatt that if he had encountered instances of -- 6 of 9 -- 7 work being undertaken not in compliance with the work method statement, he would have taken steps to remedy this. [33] Daily meetings with the onsite supervisor of workers engaged in work for NQ Roofing were conducted by Mr Mariot. This is when any on-site problems were discussed. [34] The specific work site at “The Entrance” was also the subject of a full-time on-site supervisor employed by H & S Vision which it seems was adopted as another level of supervision by NQ Roofing. [35] The prosecution argue that NQ Roofing have failed in the monitoring of the control measure that was in place in that the supervisor Mr Froggatt did not adequately supervise Mr Moore. [36] Mr Froggatt gave evidence of two occasions when he spoke to Mr Moore on site. His evidence was somewhat vague regarding exactly when these conversations took place but this, in my view, is understandable given the apparently mundane nature of the conversations at the time, and the passage of time since the events. The first conversation was said to have been during the course of the housing development undertaken immediately prior to “The Entrance”. He said that on this occasion he commented to Mr Moore that the batten fixers were still installing the battens; therefore the roof was not ready for him to commence the installation of the flashing. He said to Mr Moore “You can’t get up there” and Mr Moore replied “Yep, Righto”. [37] The second occasion was said to have been at “The Entrance” development when, again, the batten fixers had fallen behind in their work. Mr Froggatt could not recall what he said to Mr Moore but that it would have related to his work being held up because of this. He recalled that other contractors had left the site during this period until the batten fixers had their work completed. This is consistent with works being undertaken in accordance with the work method statement and with his recollection of commenting to Mr Moore about this situation. [38] Mr Froggatt said he would have spoken to Mr Moore if he had seen him installing valley flashing without battens in place. He did not recall having to do so. It was noteworthy that this part of the work was estimated to take only about 20 minutes per house. Therefore it is conceivable that Mr Moore could have been operating in this manner without Mr Froggatt’s knowledge. [39] The prosecution argue that Mr Froggatt’s evidence was so vague on these issues that I would not accept his account. Instead, it is submitted that I would accept Mr Moore’s account which was that he was never spoken to by Mr Froggatt about such things although he conceded that if Mr Froggatt saw workers not complying with requirements, then he would be likely pull them up about it and give them directions. [40] In the end, having the chance to observe and consider the evidence of both witnesses I find I prefer the evidence of Mr Froggatt over that of Mr Moore as it relates to the actions of Mr Froggatt. Any vagueness on the part of Mr Froggatt is explicable and his account had an air of truth to it. Therefore, it flows that NQ Roofing had employed a supervisor who was to monitor compliance with the work -- 7 of 9 -- 8 method statement and this supervisor appeared to performing this role to a competent standard bearing in mind his overall work obligations. [41] NQ Roofing also point to the company’s fostering of a workplace safety culture by (a) Subscribing to Master Builders and Housing Industry Association publications; (b) Receiving and reviewing material from the officer of Workplace Health and Safety; (c) Participating in seminars and trade-specific information sessions focusing on safety policies and risk management. [42] Any changes in the company’s obligations were to be actioned by contacting their workplace health and safety consultant to ascertain whether any changes in the work method statement or work practices were required. If so, necessary amendments were implemented. [43] The work method statement was reviewed annually by an independent safety consultant. [44] In the end, I am satisfied that NQ Roofing had undertaken adequate monitoring and review of the control measure. Conclusions regarding s 37(1)(a) and s 37(1)(b) [45] Overall, I am satisfied that NQ Roofing had undertaken the five step process in an appropriate manner and consequently adopted and followed a way to discharge the company’s workplace health and safety obligation for exposure to risk and taken reasonable precautions, and exercised proper diligence, to ensure the obligation is discharged. [46] The company had properly identified the dire risk of falling from height and devised an appropriate control measure. This was communicated to relevant persons and understood by, in particular, Mr Moore. Supervision was in place to an adequate level. [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 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. [48] Ultimately, I have concluded that the control measure provided for in the work method statement was an appropriate one and satisfied that which was required by the WHSR and that the company had taken all reasonable steps to make sure this was used by those performing work for the company. Therefore, the defence allowed for under s 37(1)(a) has been established to the requisite standard by NQ Roofing and they should be found not guilty of the offence and on this basis. [49] If I am mistaken about the control measure being one prescribed by regulation, I find in the alternative that I am satisfied that NQ Roofing has established a defence to the requisite standard under s 37(1)(b), in that the company adopted and followed -- 8 of 9 -- 9 a stated way to prevent the contravention (as prescribed by the RMCP). Therefore, the company is not guilty of the offence on this basis. [50] I will, however, go onto consider the further defence raised by NQ Roofing. S 37(2): Was the commission of the offence due to causes over which NQ Roofing had no control? [51] Mr Moore sub-contracted to NQ Roofing. He did not have his own work method statement and it was said that he had adopted the work method statement of NQ Roofing. [52] Mr Moore had 15 years experience in his trade and had undertaken various courses to receive his “full roofers licence” and blue card. He was aware of his need to personally ensure his own safety at the work place. [53] Mr Moore initially tried to say that the work method statement attaching to “The Entrance” did not refer to valleys and was not really relevant to his situation. This was clearly not the case, as he later conceded. Ultimately, Mr Moore accepted that he knew battens were meant to be installed on trusses that were to carry a tiled roof and that this was the “ideal”. However he went on to say that, with tiled roofing, he installed the valleys first before the battens were installed. He accepted that this meant there was no fall protection in place and that there was a real risk of a fall from height. He said this was how he worked. [54] Upon this basis, the prosecution argued that NQ Roofing failed in its obligation because this was not detected and remedied by the supervisor Mr Froggatt. The inference being there was either poor supervision or tacit acceptance of the work practice. For reasons I have outlined above (paragraphs 32 to 40), I reject this argument. [55] In the end, the impression I gained from Mr Moore was that he completely disregarded the control measure in the work method statement, and his own personal obligations to protect his own safety while on site, and that he was unlikely to change his work practices in the face of all of the measures put in place by NQ Roofing. [56] If the control measure in the work method statement had been utilised by Mr Moore, it seems clear he would not fallen through the roof as he did. Mr Moore could provide no reason at all as to why he did the work without the battens in place except to say that this was how he always worked. The only conclusion open is that he did so as a result of his own considered decision to work in this way. This was, therefore, a wilful act on his part and a reckless one. [57] I find that the event which led to Mr Moore’s ultimate injury was due to causes over which NQ Roofing had no control and I would also find the company not guilty of the offence on this basis. [58] Having reached these conclusions, it is not necessary to consider the further alternative basis of the defence case (that is, that the company did not cause grievous bodily harm to Mr Moore) as I have found the company not guilty of the offence inclusive of the circumstance of aggravation. [59] The defendant company is discharged. -- 9 of 9 --