Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Larobina v Jaymay Constructions Pty Limited & Patrick Sahyoun [2003] NSWIRComm 120 PROSECUTOR Inspector Larobina PARTIES : DEFENDANTS Jaymay Constructions Pty Limited Patrick Sahyoun FILE NUMBER: IRC 3544 & 3547 of 2002 CORAM: Boland J CATCHWORDS : Occupational health and safety - Sections 16 and 19 of the Occupational Health and Safety Act - Construction industry - Subcontractors injured when hoist they were ridnig on collapsed - Maximum lift capacity exceeded - Hoist incorrectly erected - No safe system of work - Failure to provide information, instruction, training and supervision - Guilty plea - Penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Inspector Glass v Kellogg (Australia) Pty Limited [2000] NSWIRComm 53 CASES CITED : Inspector Howard v ACN 002 596 615 Pty Limited [2002] NSWIRComm 355 Inspector Howard v Boone & Willard Plumbing Pty Limited [2002] NSWIRComm 228 Inspector Howard v General Beton [2001] NSWIRComm 80 Inspector Howard v Multiplex Constructions (NSW) Pty Ltd [2002] NSWIRComm 229 Inspector Jones v Fernandes Constructions [2002] NSWIRComm 71 HEARING DATES: 03/04/2003 DATE OF JUDGMENT: 04/17/2003 PROSECUTOR Mr R Reitano of counsel Solicitor: Mr G Phillips Carroll & O'Dea Solicitors LEGAL REPRESENTATIVES: DEFENDANTS Mr J M Galluzzo of counsel Solicitor: Mr J Gould J P Gould Solicitors JUDGMENT: - 15 - FINDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Boland J Thursday 17 April, 2003 Matter No IRC 3544 of 2002 INSPECTOR LAROBINA v JAYMAY CONSTRUCTIONS PTY LIMITED Prosecution under s 16 (1) of the Occupational Health and Safety Act 1983 Matter No IRC 3547 of 2002 INSPECTOR LAROBINA v PATRICK SAHYOUN Prosecution under s 19 (1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 120 1 Jaymay Constructions Pty Limited ("the first defendant") was contracted by Booksan Pty Limited to provide building supervision of contractors and others at a site in Bankstown where 54 home units were being constructed over three floors. The first defendant employed Patrick Sahyoun ("the second defendant") as its foreman at the site. 2 Mahmoud Khodr and Khaled Wehbe, trading as M K Tiling, were subcontracted to Booksan to carry out tiling and labouring at the site. Mazen Khodr, Bilal Wehbe and Salah Elmir were all employed by M K Tiling as labourers at the site. 3 On 21 June 2000 whilst working at the site Bilal Wehbe, Salah Elmir and Mazen Khodr were instructed by Patrick Sahyoun to load tiles on to a hoist at the site which had been erected by the first defendant. They were told by Patrick Sahyoun how much to load onto the hoist. They allege they were told by Patrick Sahyoun to then ride on the hoist with Mahmoud Khodr to the third floor. The load of tiles weighed 1210 kilograms. The rated lift capacity of the hoist was 500 kilograms. The hoist had a sign affixed to it which prohibited the riding of the hoist by persons. The hoist was not correctly erected by the first defendant. 4 Upon reaching the third floor the hoist collapsed and all four passengers fell to the ground and suffered serious injuries. 5 The first defendant was charged with an offence under s 16(1) of the Occupational Health and Safety Act 1983. Section 16(1) provides: (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 6 The charge alleged that: Jaymay Constructions Pty Limited (ACN 001 019 585), a company duly incorporated with a registered office located at 300A Marsden Road, Carlingford in the State of New South Wales being an employer at a construction site located at 371 Hume Highway, Bankstown in the State of New South Wales, DID FAIL, on 21 June 2000, contrary to s.16(1) of the Occupational Health & Safety Act 1983 (NSW) to ensure that persons not in the Defendant's employment and in particular, Mazen Khodr, Mahmoud Khodr, Bilal Wehbe and Salah Elmir, were not exposed to risks to their health and safety arising from the conduct of the Defendant's undertaking whilst they were at the Defendant's place of work. 7 In the particulars to the charge it was further alleged: (a) the Defendant failed to provide or maintain plant, namely, the transmission technology hoist type TT3, which was safe and without risks to health; (b) the Defendant failed to provide a safe system of work for the operation of the transmission technology hoist type TT3 to ensure that the said persons would not ride on the said hoist and to ensure that the said hoist would not be loaded past its rated lift capacity of 500 kilograms; (c) the Defendant failed to provide such information, instruction, training and supervision at the site of the said persons to ensure that the hoist would not be overloaded and persons would not travel on the hoist when prohibited. 8 The second defendant, Mr Sahyoun, was charged with an offence under s 19(a) of the Occupational Health and Safety Act. That section provides: Every employee while at work: (a) shall take reasonable care for the health and safety of persons who are at his or her place of work and who may be affected by his or her acts or omissions at work, … 9 The charge against the second defendant alleged that: Patrick Sahyoun (DOB: 18 May 1974) of 161 The Trongate, Granville in the State of New South Wales, did fail, on 21 June 2000 contrary to Section 19(a) of the Occupational Health & Safety Act 1983 (NSW) being an employee at work at a construction site located at 371 Hume Highway, Bankstown in the State of New South Wales, DID FAIL to take reasonable care for the health and safety of persons who were at his place of work and in particular, Mazen Khodr, Mahmoud Khodr, Bilal Wehbe and Salah Elmir who may be affected by his acts or omissions at work. 10 In so far as the relevant detriment to safety is concerned the particulars to the charge against the second defendant relied upon by the prosecution alleged that: (a) The Defendant, being an authorised materials hoist operator, allowed the said persons to ride on a transmission technology hoist type TT3 ("the hoist"); (b) The Defendant failed to ensure that the said hoist would not be loaded past its rated capacity of 500 kilograms. 11 Both defendants entered a plea of guilty to the respective charges against them. 12 The evidence in the proceedings included agreed statements of fact in relation to each defendant, a factual inspection report into the incident by Inspector Max Luland dated 11 September 2000, a bundle of 23 colour photographs showing various shots of the site, the hoist and the aftermath of the hoist's collapse, statements of prior convictions in relation to both of the defendants (neither having any prior convictions), an affidavit by Michael Sahyoun, a director of the first defendant, two trade restricted certificates held by John Sahyoun, another director of the first defendant, and a document published by the Department of Industrial Relations and Employment in June 1988 specifying the duties that persons holding certain types of trade restricted certificates may perform. 13 In his affidavit Michael Sahyoun deposed that: · From 1972 the first defendant had carried on the business of building construction and construction supervision work within the Sydney Metropolitan area. The first defendant had ceased carrying on the business of building construction and construction supervision in December 2000 although in the course of proceedings it was conceded that the first defendant could re-commence this business at any time. · At the time of the accident, other than the directors of the first defendant, there were four other employees. · Patrick Sahyoun, a cousin of the deponent, was an employee of the first defendant. He was the holder of a certificate of competency for operating a hoist. He also held first aid qualifications and an associate diploma in Applied Building Management. · At the Bankstown site the first defendant provided signage in relation to occupational health and safety and induction for all subcontractors who came on the site. The first defendant ensured that on the hoist that collapsed there was a sign indicating a maximum weight and prohibition of persons riding on the hoist. · Following the incident the first defendant reviewed its occupational health and safety policies and these policies were continually updated through consultation with employees and subcontractors. · The first defendant is committed to ensuring the health and safety of employees and non employees in its workplace. · After the incident all subcontractors and employees went through refresher training in relation to occupational health and safety. All contractors and employees were informed that under no circumstances were persons to be allowed on the hoist and the weights on the hoist were carefully inspected. Submissions of the parties 14 Mr R Reitano of counsel appeared for the prosecutor. In relation to the first defendant Mr Reitano helpfully tendered written submissions that reviewed the agreed facts. He submitted that the hoist had not been erected by a person qualified to erect it and it had not been erected correctly. Further, that none of the persons using the hoist or riding on it on 21 June 2000 had received any instruction, information or training in relation to the safe use of the hoist and the importance of not riding on the hoist. Mr Reitano's written submission also canvassed the relevant sentencing principles and their application to the facts relating to the first defendant. 15 Counsel for the prosecutor submitted that the objective seriousness of the offence can be determined by reference to a number of factors – the maximum penalty prescribed for the offence, the nature and seriousness of the offence having regard to considerations of knowledge of the risk or of its foreseeability, and the availability of remedial steps as well as the likely consequences (as distinct from the actual consequences) flowing from the commission of the offence. Mr Reitano submitted in relation to the first defendant: · The maximum penalty applicable in the case of the first defendant was $550,000. · The fact that the workers in question were working at height demonstrates a known and identifiable danger associated generally with building sites (see, for example, the Construction Safety Regulations, especially Reg 73(3) and (8) and Reg 74); see also Inspector Jones v Fernandes Constructions [2002] NSWIRComm 71; see also Inspector Howard v General Beton [2001] NSWIRComm 80 and Inspector Howard v ACN 002 596 615 Pty Limited [2002] NSWIRComm 355). The hazard presented by the very nature of the work in question was not only foreseeable but obvious. · The risk associated with the work in question was one that could be readily ensured against by simple and straight forward remedial steps. Ensuring the lifting capacity of the hoist was adequate or safe, ensuring that the hoist was correctly installed and properly training, informing and instructing those using the hoist were not difficult things to do. It was certainly not "difficult" to ensure that a materials hoist was not used to transport people. · The obvious risk and the simple steps that were available to avert it make the instant offence a serious one. · The seriousness of the offence in the present case can also be assessed having regard to the width and breadth of the defendant's omissions in respect of its obligations in relation to safety. The defendant's omissions in respect of safety are numerous. They demonstrate something of a wanton disregard for safety at work completely. · The Commission would have regard to the practical consequence of the offence. Four individuals were injured. One suffered a very serious injury – brain damage. Three others were obviously exposed to the same possible consequence albeit that it did not manifest itself. The actual injury is perhaps not as important as what the injury might have been – good fortune (and probably nothing else) is the only explanation for the lack of a fatality. · The seriousness of an injury alone does not dictate the size of any penalty but it does demonstrate the seriousness of the detriment to safety occasioned by the offence. · The issue of specific deterrence and general deterrence of course assume importance. Obviously the imposition of a significant fine will operate as a general deterrent. In this respect the large number of prosecutions arising out of incidents on building and construction sites in recent times cannot and should not be ignored. In Inspector Jones v Fernandes, Boland J considered that the need for general deterrence in relation to falls protection on a mainstream construction project was undeniable. Whilst falls protection is not the precise issue here the need to ensure the safety of those moving to heights is equally of importance. · As to specific deterrence, the Commission would have regard to the defendant's generally good record. That does not mean that the weight to be attached to specific deterrence should or can be reduced to zero (see, Capral Aluminium v Workcover Authority (2000) 49 NSWLR 610 at [77]. The role of specific deterrence in an industry where there are known and identified inherent risks to safety is of some importance (see Inspector Glass v Kellogg (Australia) Pty Limited [2000] NSWIRComm 53 at [46]. · In imposing a penalty on the defendant the Commission would have regard to the sentences imposed in other similar cases some of which are referred to above which have involved similar circumstances and similar systems of work. The Commission would be guided by those cases as to the seriousness of the instant case. Further, consistency in sentencing requires the Commission to consider the sentences in those cases because they involve offences of a similar kind and of a similar seriousness (see, for example, Inspector Jones v Fernandes, Inspector Patton v Brambles and Inspector Howard v General Beton [2001] NSWIRComm 80; Inspector Howard v Multiplex Constructions (NSW) Pty Ltd [2002] NSWIRComm 229; Inspector Howard v Boone & Willard Plumbing Pty Limited [2002] NSWIRComm 228). All of those cases relate to falls so are not precisely the same as the instant matter, but they do provide some guidance as to the seriousness of this matter having regard to the nature of the risk, its consequences, its means of avoidance and considerations of deterrence. · The offence in the circumstances is a serious one falling within the high range of seriousness matters coming before the Commission. · The prosecution concedes that the defendant is entitled to a "discount" having regard to its plea. The defendant has no record. The Commission is entitled to have regard to subjective matters. These are of secondary importance in the sentencing process. · The prosecutor seeks a moiety of the fine and costs. 16 In relation to the second defendant Mr Reitano submitted: · Here the Court is dealing with a first offender and, therefore, the penalty to be imposed is to be measured against a maximum penalty of $3,300. · Section 19 of the Act recognises the importance of the obligation imposed on employees for protecting others who they work with. · In the present circumstances the Court would apply principles similar to those which apply to breaches of obligations imposed on employers under the Act and would in particular have regard to the wilfulness or wantonness in the particular defendant's failure to demonstrate reasonable care for others whilst at work. That will in the present circumstances have regard to the fact that the defendant here was in a position of special knowledge (having regard to his qualifications) and failed to do anything consistent with that knowledge so as to ensure that four other individuals were not exposed to risks to their health and safety. · Like in the related case of Jaymay Constructions Pty Limited general and specific deterrence play an important part in the sentencing process in relation to this defendant. In particular employees generally in the building and construction industry need to see consequence of their failure to exercise reasonable care. · Equally, specific deterrent against this defendant has an important part to play in the sentencing process concerning the matter presently before the court. · The offence in the circumstances is a serious one falling within the high range of seriousness in matters coming before the Commission. · The prosecution concedes that the defendant is entitled to a "discount" having regard to its plea. The defendant has no record. The Commission is entitled to have regard to subjective matters. These are of secondary importance in the sentencing process. · The prosecutor seeks a moiety of the fine and costs. 17 Mr J M Galluzzo of counsel appeared for the first and second defendants. His submissions may be summarised as follows: · The first defendant is a family business. It is no longer involved in the construction industry although there is nothing preventing the first defendant from re-entering the industry "tomorrow". However, the first defendant has no such intention. · The first defendant has been in the construction industry for thirty years. It has a good safety record, this being the first offence. · The certificates of competency issued to John Sahyoun and the rules governing the nature of the work that be might be performed by a person holding such certificates are unclear about the work of erecting a materials hoist. Mr Sahyoun had erected such hoists over a number of years and there have never been any problems. · The first defendant relied on the second defendant to operate the lift safely and, therefore, the seriousness of the offence is not at the highest level. The second defendant no longer works for the first defendant. · The second defendant has no prior convictions. · The second defendant disputes that he instructed persons to ride on the materials lift but that Mazen Khodr, Mahmoud Khodr, Bilal Wehbe and Salah Elmir insisted on riding on it and nagged him to operate the hoist. · The second defendant is remorseful and contrite. Consideration 18 The first defendant, Jaymay Constructions Pty Ltd, has pleaded guilty to one charge under s 16 of the Act. The particulars to the charge allege that the defendant: (a) failed to provide or maintain plant, namely, the transmission technology hoist type TT3, which was safe and without risks to health; (b) failed to provide a safe system of work for the operation of the transmission technology hoist type TT3 to ensure that the said persons would not ride on the said hoist and to ensure that the said hoist would not be loaded past its rated lift capacity of 500 kilograms; and (c) failed to provide such information, instruction, training and supervision at the site of the said persons to ensure that the hoist would not be overloaded and persons would not travel on the hoist when prohibited. 19 The first particular relates to the defendant's failure to correctly erect the hoist. The agreed statement of facts stated: The tower was fixed to the building with only one lateral tie instead of two. The vertical prop installed on the balcony to connect the tie was also not fixed in the concrete structure. If the hoist had been installed correctly the tower section may not have pulled away from the building structure and fallen. 20 Moreover, whilst the person erecting and installing the hoist had building qualifications and held a trade restricted Certificate of Competency Class 1, he did not have a Certificate of Competency to erect and install the said hoist. 21 The second particular relates to the first defendant's failure to provide a safe system of work by ensuring that persons did not ride on the hoist and by ensuring the hoist was not loaded beyond its rated capacity of 500 kilograms. The hoist had a sign attached to it stating "MAXIMUM LOAD - Standing or riding on platform strictly prohibited". Beyond the sign, however, there were no other measures in place to ensure that persons did not ride on the hoist and the hoist was not loaded beyond its rated capacity. 22 The third particular referred to the first defendant's failure to provide adequate information, instruction, training and supervision to ensure that the hoist would not be overloaded and persons would not travel on the hoist when prohibited. None of the persons who rode on the hoist had received any instruction, information or training in relation to the safe use of hoists and the importance of not riding on materials hoists. 23 I detected in the first defendant's submissions a suggestion that the main party at fault in causing the detriment to safety was the second defendant and that mitigates the seriousness of the first defendant's offence. The second defendant is, indeed, seriously culpable and I have taken that into account. What I must consider, however, is the objective seriousness of the offence with which the first defendant is charged. 24 The failures by the first defendant to ensure persons were not exposed to risks were serious and demonstrate a careless disregard for the safety of workers. The risk to safety created by the failures to correctly erect the hoist, to ensure that the hoist was not overloaded and to ensure that persons did not ride on the hoist, is self-evident. Moreover, such failures were likely to - and did - lead to serious consequences. 25 The existence of simple and straightforward remedial steps which could have been taken by the defendants to avoid the accident are relevant to assessing the seriousness of the offence: see Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. As the prosecutor submitted: Ensuring the lifting capacity of the hoist was adequate or safe, ensuring that the hoist was correctly installed and properly training, informing and instructing those using the hoist were not difficult things to do. It was certainly not "difficult" to ensure that a materials hoist was not used to transport people. 26 In relation to general deterrence, the offence committed by the first defendant was in the building industry in the course of the construction of three levels of home units. I consider that I am entitled to take judicial notice of the fact that such work is reasonably common in the Sydney metropolitan area and the erection of hoists on such building sites to move material from one level to another is also commonplace. I consider that in setting the penalty it should be at a level that will realistically operate as a deterrent but not so high as to be oppressive: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29. 27 In relation to specific deterrence, I note that the first defendant is no longer in the building industry and has no intention of returning to that industry although it was conceded that it could do so at any time. I propose to take these facts into account as well as the measures taken by the first defendant after the incident to improve occupational health and safety and the defendant's good safety record. 28 There are a number of subjective factors to be taken into account in sentencing. These factors are: 1. The first defendant pleaded guilty at an early stage. 2. The first defendant took steps to ameliorate the particular risks that gave rise to the charge. 3. The first defendant has no prior convictions and given the length of time it has operated in the building industry, it has a good safety record. 4. The first defendant is a family company. 29 The submission in relation to remorse and contrition said to be represented by an early plea of guilty does not carry much weight. In my opinion, the plea was a recognition of the inevitable. 30 Having regard to the objective seriousness of the offence committed by the first defendant, I consider an appropriate penalty to be $90,000 with a discount for the utilitarian value of the guilty plea of 12.5 per cent and a further 5 per cent for other subjective factors. This results in a fine of $74,250. 31 In relation to the second defendant, Patrick Sahyoun pleaded guilty to a single charge under s 19(a) of the Occupational Health and Safety Act. Under that provision Mr Sahyoun was required to take reasonable care for the health and safety of persons who are at his place of work and who may be affected by his acts or omissions at work. The particulars of the charge were that: (a) The Defendant, being an authorised materials hoist operator, allowed the said persons to ride on a transmission technology hoist type TT3 ("the hoist"); (b) The Defendant failed to ensure that the said hoist would not be loaded past its rated capacity of 500 kilograms. 32 This offence is a serious breach by a worker of his duty to take reasonable care for the health and safety of other workers. Not only did the second defendant - a foreman and authorised materials hoist operator - overload the hoist by a considerable margin but on top of that load, allowed four workers to ride on a hoist. But for the doubt raised by the second defendant that he did not instruct the four workers to ride on the hoist but was pressured into allowing them to do so, I would have considered the nature and quality of this offence to be in the high range. 33 Even accepting the second defendant's version of events that he was badgered into allowing the workers to ride on the hoist, the fact that he operated the overloaded hoist with the workers on it, reduces his culpability only marginally. The offence reflects a complete lack of regard by a person in a supervisory capacity with special knowledge for the health and safety of fellow workers. 34 General deterrence must play an important part in sentencing this defendant for the reasons explained in relation to the first defendant. As to specific deterrence, I have taken into account that the second defendant has an otherwise clean record. 35 As to subjective factors the second defendant entered an early plea, although this is not surprising in the circumstances and, like the first defendant, was in my opinion, a recognition of the inevitable. 36 Having regard to the objective seriousness of the offence committed by the second defendant, I consider an appropriate penalty to be $2,700 with a discount for the utilitarian value of the guilty plea of 12.5 per cent and a further 2.5 per cent for other subjective factors. This results in a fine of $2,295. Orders 37 The Court makes the following orders: Matter No 3544 of 2002 - Jaymay Constructions Pty Limited 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $74,250 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. Matter No 3547 of 2002 - Patrick Sahyoun 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $2,295 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. 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