Industrial Court of New South Wales CITATION: Inspector Dimitri Barlas v C & J Carpentry & Construction Pty Ltd and Others [2009] NSWIRComm 127 PROSECUTOR: Inspector Dimitri Barlas PARTIES: DEFENDANTS: C & J Carpentry & Construction Pty Ltd Joseph Paul Ghaleb S & M Halabi Pty Ltd as trustee for Maybach Enterprises Trust t/as Maybach Enterprises Sayed El Halabi FILE NUMBER(S): IRC 180; 181; 182; and 183 of 2008 CORAM: Backman J LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Inspector Braddick v Connex Sydney Pty Ltd (known as Veolia Transport Sydney Pty Ltd) [2007] NSWIRComm 208 Inspector Colin Price v Hunter Galvanizing Pty Limited; Inspector Colin Price v Kerry Bartholomew [2006] NSWIRComm 43 Inspector Garg v Precision Valve Australia Pty Ltd [2006] NSWIRComm 142 CASES CITED: Inspector Guillarte v Trustees of De La Salle Brothers [2004] NSWIRComm 49 Inspector Lavercombe v Alto Automobiles Pty Ltd [2007] NSWIRComm 252 Inspector Melissa Chaston v Sacco Builders Pty Ltd & Others [2008] NSWIRComm 152 Inspector Paul Kenneth Wade v Ken Mathews Haulier Pty Limited t/as Ken Mathews Landscaping Supplies [2005] NSWIRComm 85 T & M Industries Pty Ltd v Inspector James [2007] NSWIRComm 85 Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 HEARING DATES: 3 February 2009 DATE OF JUDGMENT: 4 August 2009 PROSECUTOR: Mr M Scott of counsel Solicitors: Criminal Law Practice Legal Group WorkCover Authority LEGAL REPRESENTATIVES: (Ms F Miller) DEFENDANTS: Mr S J Stanton of counsel Solicitors: Carters Law Firm (Mr D Hansen) JUDGMENT: - 7 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BACKMAN J Tuesday, 4 August 2009 Matter No IRC 180 of 2008 INSPECTOR DIMITRI BARLAS v C & J CARPENTRY & CONSTRUCTION PTY LTD Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 181 of 2008 INSPECTOR DIMITRI BARLAS v JOSEPH PAUL GHALEB Prosecution under section 8(1) and section 26(1) of the Occupational Health and Safety Act 2000 Matter No IRC 182 of 2008 INSPECTOR DIMITRI BARLAS v S & M HALABI PTY LTD AS TRUSTEE FOR MAYBACH ENTERPRISES TRUST T/AS MAYBACH ENTERPRISES Prosecution under section 10(1) of the Occupational Health and Safety Act 2000 Matter No IRC 183 of 2008 INSPECTOR DIMITRI BARLAS v SAYED EL HALABI Prosecution under section 10(1) and section 26(1) of the Occupational Health and Safety Act 2000 JUDGMENT OF THE COURT [2009] NSWIRComm 127 1 The defendants have pleaded guilty to the following offences: C & J Carpentry & Construction Pty Ltd: s 8(1) of the Occupational Health and Safety Act 2000 (2000 Act). Joseph Paul Ghaleb: s 8(1) by virtue of s 26(1) of the 2000 Act. S & M Halabi Pty Ltd as trustee for Maybach Enterprises Trust t/as as Maybach Enterprises: s 10(1) of the 2000 Act. Sayed El Halabi: s 10(1) by virtue of s 26(1) of the 2000 Act. 2 At the time of the offences, C & J Carpentry was engaged by S & M Halabi (the principal contractor) as a sub-contractor to supply and install wall and roof frames and other items to a duplex and villa under construction at 9 Station Street, Schofields. The owners of the premises had entered into a contract for the construction of the buildings with S & M Halabi. Mr El Halabi was a director and sole employee of S & M Halabi and had, according to the Agreed Statement of Facts, direct involvement in the day-to-day management of that company. He was present at the premises on 7 April 2006, the day of the offences. He was a qualified cement renderer, but not a licensed builder. 3 C & J Carpentry employed George James Tarabay as an apprentice carpenter. On 7 August 2006, he was 15 years old, and had approximately four weeks experience as a first year apprentice carpenter. Mr Ghaleb was a director of C & J Carpentry who had, according to the Agreed Statement of Facts, direct involvement in the day-to day management of his company. 4 On 7 April, the construction of the two-storey duplex was at the stage where first level wall frames were being erected. Voids were present in the first floor in order to accommodate staircases which were to be built to connect the two floors. Mr Ghaleb had attended the premises in the morning and instructed Mr Tarabay to assist in the construction of the wall framing. The process involved lifting 6 metre-long lengths of timber from the ground floor to the first floor where they were to be measured, cut and nailed together to form the wall frames. At about 1.30pm, Mr Tarabay was carrying one of the lengths of timber from the ground floor to the first floor. On the first floor he walked backwards while carrying the length of timber and stepped into the stairwell void falling about 3.5 metres to the concrete surface on the floor below. He was not using any fall protection equipment at the time and there was no guarding or railing around the void. Temporary guarding and railing, which had been placed there earlier, had been removed prior to the accident. 5 Mr Tarabay suffered significant injuries as a result of the fall. These included a hairline fracture on the left side of his skull, deafness in the left ear, bruising and swelling and loss of fluid from the brain, headaches and sinus blockage. His injuries prevent him travelling by air and playing representation football. As at November 2008, he had not returned to work. He has a reduced capacity to learn as a result of his injuries and also suffers from post-traumatic stress disorder. The risk of injury: foreseeability and probable consequences 6 The offences occurred in circumstances where there were no barricades, handrails or fall protection in place in the area around the stairwell void and no safety harnesses were used by the workers, including Mr Tarabay, while they were working in the vicinity of the void. The absence of any safety measures with regard to the void created an obvious and foreseeable risk to the safety of all persons working in the vicinity of the void. In Mr Tarabay's case, he was young, inexperienced, with no formal instruction as an apprentice at the time of his accident. He had not, at that time, according to the Agreed Statement of Facts, been inducted to the worksite and had received no safety training apart from a direction to "be careful". Given Mr Tarabay's youth and inexperience in particular, he required close supervision and adequate training. These matters elevate, necessarily, the offences against all defendants into the objectively serious category. 7 The circumstances giving rise to the offences, as exemplified by Mr Tarabay's most unfortunate accident, also reveal that the likely or probable consequences arising from exposure to the risk to safety of the workers would be serious: see, for example, Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 at [71]. Systems of work in place prior to accident 8 The defendants had no effective safety system in place on the day of the offences. Mr Ghaleb was Mr Tarabay's nominated supervisor on that day but he was absent from the site at the time Mr Tarabay fell through the void. Shady Nakhle, also an employee of C & J Carpentry, and the most experienced worker, was assigned the role of instructing Mr Tarabay in Mr Ghaleb's absence. Mr Nakhle says that no-one directed him to supervise Mr Tarabay. He was not a qualified tradesperson and had not undertaken any supervisory duties at the premises. Neither Mr El-Halabi, the director of the principal contractor, nor S & M Halabi, had sought to put in place any levels of supervision to ensure the workers were safe while the void remained unprotected and exposed. 9 C & J Carpentry had not inspected or conducted a risk assessment in the area where Mr Tarabay had been working. Nor did it undertake a risk assessment in respect of the work Mr Tarabay was performing. C & J Carpentry had, however, prepared a documented safe work method statement dated 4 April 2006 for the premises. It was deficient in that it failed to adequately identify, assess, eliminate or control the risk of falls from heights and failed to identify the risk arising from unguarded voids. Moreover, the document was not provided to employees. 10 According to the Agreed Statement of Facts, Mr El-Halabi said that he had inspected the first floor prior to the work commencing there but failed to identify hazards at that time. He said that a handrail was in place around the void prior to the wall frames being put up but he was aware that the handrail would be removed so that the wall frames could be installed. He also said that prior to the removal of the handrails he had advised the workers "as a group" to exercise caution until the wall frames were in place. 11 None of these matters establish any semblance of a safe system of work in contemplation or in place on the day of the offences. The fact that C & J Carpentry had developed a SWMS for the work at the site does little to dispel the conclusion. The SWMS was seriously deficient and, in any event, its contents were not made known to the employees. With regard to S & M Halabi, Mr Halabi knew that the void would be unprotected while work was being carried out in the near vicinity. The only measure he imposed, which, in terms of ensuring safety was clearly not adequate, was to verbally advise the workers as a group to exercise caution. 12 These considerations add to the overall objective seriousness of the offences. 13 On behalf of the defendants it was conceded that the offences committed by each of them were serious. It was conceded in particular that the workers were placed at serious risk to their safety. It was conceded that Mr Tarabay's youth and inexperience, his lack of fall protection, the failure of his employer to induct him to the site, the absence of appropriate supervision, inspection and the failure to have in place a safe system of work, were all factors which aggravated the seriousness of each offence. 14 What was submitted on their behalf was that the Court not give undue weight to factors which establish the objective seriousness of the offences at the expense of taking into account those circumstances which serve to mitigate the seriousness of the offences. Deterrence 15 The defendants also conceded that both general and specific deterrence must be taken into account in the sentencing process. 16 In my view, both principles are relevant and must be applied on sentence. Falls from heights in the workplace are a common and regrettable feature of the failure to implement adequate safety controls in the workplace. They often result in serious injuries, even fatalities. Just as often, the institution of simple, remedial measures could have been taken so that the risk was removed and injuries avoided. I adopt in these sentencing reasons a statement I made to that effect in Inspector Braddick v Connex Sydney Pty Ltd (known as Veolia Transport Sydney Pty Ltd) [2007] NSWIRComm 208 at [10]: General deterrence is also an important consideration in the circumstances. The risk of falling is an all too common feature of many occupational health and safety prosecutions in this jurisdiction. Many of those prosecutions have involved serious injuries (and sometimes fatalities) which in many cases could have been avoided by the implementation of relatively straightforward protective measures. As in the present circumstances the evidence which emerges from those prosecutions is that the risk of falling is often obvious and foreseeable. These matters highlight once again the need to alert employers who operate in industries where workers work at heights to the importance of ensuring the implementation of safe work practices, of safe training regimes and of conducting proper risk assessments in relation to the searching out and detection of any unsafe plant, hazards, practices or operations which might or could expose workers to the risk of falling: see WorkCover Authority of New South Wales (Inspector Robert Mayell) v DJ Gleeson Pty Ltd [2006] NSWIRComm 363 at [27], [28]. 17 The principle assumes greater significance where trainees such as Mr Tarabay perform work at construction sites. Mr Tarabay was inexperienced and had only been "on the job" for some four weeks. He was exposed to serious risk to his safety by reason of the failure of his employer and his supervisors to implement adequate and appropriate safety measures. This issue has been addressed in a number of judgments in this jurisdiction which have dealt with serious injuries to young and/or inexperienced workers in circumstances where injuries could have been avoided by the implementation of, and attention to, simple and readily available measures: see Inspector Garg v Precision Valve Australia Pty Ltd [2006] NSWIRComm 142; Inspector Guillarte v Trustees of De La Salle Brothers [2004] NSWIRComm 49; Inspector Paul Kenneth Wade v Ken Mathews Haulier Pty Limited t/as Ken Mathews Landscaping Supplies [2005] NSWIRComm 85 at [36]; Inspector Colin Price v Hunter Galvanizing Pty Limited; Inspector Colin Price v Kerry Bartholomew [2006] NSWIRComm 43 at [13]; Inspector Lavercombe v Alto Automobiles Pty Ltd [2007] NSWIRComm 252 at [47] [51] [52]; T & M Industries Pty Ltd v Inspector James [2007] NSWIRComm 85 at [18] to [20]; Inspector Melissa Chaston v Sacco Builders Pty Ltd & Others [2008] NSWIRComm 152 at [15] to [28]; 18 The sentences to be imposed must also reflect the need for specific deterrence. The corporate defendants continue to engage in work in the building industry. S & M Halabi continues to perform its role within the industry as a principal contractor. Mr Ghaleb remains involved in the management and supervision of the work performed by C & J Carpentry. Mr El Halabi is also involved in the industry in his capacity as director of S & M Halabi. Given the continuing involvement of the defendants in the building industry it cannot be said that the risk of re-offending is low or non-existent: see Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [77]. Post-accident remedial measures 19 Following the accident C & J Carpentry implemented a regime whereby it now undertakes regular inspections of premises at the commencement and conclusion of each working day. It has also developed, since the accident, a Premises Policy. Tendered into evidence on sentence on behalf of C & J Carpentry and Mr Ghaleb was a "Site OHS Plan" developed by C & J Carpentry. It is undated but the Court was informed that it was created after the accident and forms part of C & J Carpentry's safety regime. It sets out a number of systems which include risk management systems, hazard reporting procedures and safety training and induction programmes. It also contains a number of precedent forms to be filled in with regard to various workplace activities. 20 S & M Halabi also commenced a premises safety induction programme following the accident and developed a safety policy and documented SWMS. A Construction Safety Plan was tendered into evidence. It contains a statement of safety policy and sets out various safety procedures including the requirement for workers at the work site to wear appropriate footwear and clothing and a requirement to ensure that workers performing construction work at a site have successfully completed their Occupational Health and Safety General Induction Course (GIC) before commencing work. Void protection has also been specifically dealt with under the heading "Common Plant" where it states: The Principal Contractor will provide common plant such as scaffold, void protection, power source (switchboard) and toilets for persons to use whilst on site. All persons working on the site must not alter or interfere with any items of common plant. If a person notices any defects with any of the common plant they must immediately notify the Principal Contractor before using the common plant. 21 These safety measures illustrate attempts following the incident by each defendant to improve safety at the worksite. The measures will be taken into account in their favour in mitigation of penalty. Other subjective factors 22 It was conceded by the prosecutor that each defendant entered pleas of guilty to the offences at the earliest and first reasonable opportunity. I propose therefore to assess an appropriate discount of the penalties to be imposed, for the utilitarian value of the plea, at 25 per cent. 23 As a separate consideration from the utilitarian value of the pleas the defendants are also entitled to leniency in recognition of the remorse shown by the pleas of guilty. None of the defendants are adversely recorded. The absence of prior convictions also entitles them to leniency. 24 Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 an offender is only entitled to the benefit of a discount for remorse if evidence is provided of an acceptance of responsibility for his or her actions, and an acknowledgement received of any injury, loss or damage caused. In my view, the defendants have satisfied the requirements of the provision. This is apparent by reason of the post-incident safety measures instituted by them to which I have earlier referred. In addition, testimonials were provided to the Court attesting to the good character of Mr Ghaleb and Mr El Halabi. I accept the contents of those testimonials and will take them into account in mitigation of the penalties to be imposed against all defendants on the basis that they provide some evidence of the contrition and remorse and also as exhibiting a resolve that there be no reoccurrence of the circumstances which gave rise to the offences. 25 Mr Ghaleb and Mr El Halabi also gave sworn evidence attesting to the assistance each had provided to Mr Tarabay at the time of the offences. Mr Ghaleb said he discussed with Mr Tarabay his options with regard to returning to the workforce or undertaking further studies. Mr El Halabi said he spoke daily to Mr Ghaleb enquiring about the progress of Mr Tarabay's recovery following the accident. He said he was concerned for his welfare. Charbel Taouk, a director of C & J Carpentry, gave sworn evidence that when Mr Ghaleb informed him about the accident he visited Mr Tarabay in hospital on a couple of occasions and gave "some holy pictures" to his mother. 26 It was also conceded by the prosecutor that the defendants fully co-operated with WorkCover in the investigation. 27 All these matters will be taken into account in mitigation of the penalties to be imposed. Respective roles 28 With regard to the level of culpability and the respective roles of each defendant in the circumstances of the offences, the parties were in agreement that their respective culpabilities were broadly equal. In my view, this characterisation of the respective roles of the defendants in the offences is borne out by the evidence. S & M Halabi was the principal contractor at the site with attendant responsibilities and authority towards both employees and contractors. C & J Carpentry, which was engaged by S & M Halabi to perform work at the site, was Mr Tarabay's employer and in that context could be said to have had the more direct role in the area of supervision, instruction and training of Mr Tarabay. It is therefore open on the evidence, and in the absence of any dispute about the issue, to find that the roles of each defendant in the events leading up to Mr Tarabay's accident, were equal. Maximum penalties 29 The corporate defendants face a maximum penalty of $550,000 and the natural defendants face a maximum penalty of $55,000. Penalty 30 In determining penalties against each defendant, I have taken into account the objective seriousness of the offences, the maximum penalties, the factors in mitigation, the absence of prior convictions and the respective culpabilities of each defendant. These factors have been considered by reference to the CSPA, in particular, s 21A. Orders 31 In Matter No IRC 180 of 2008, the Court makes the following orders: (i) The defendant, Inspector Dimitri Barlas v C & J Carpentry & Construction Pty Ltd is convicted of the offence. (ii) The defendant is fined $90,000 with a moiety to the prosecutor. (iii) The defendant is to pay the costs of the prosecutor as agreed or in the absence of agreement, as assessed. 32 In Matter No IRC 181 of 2008, the Court makes the following orders: (i) The defendant, Inspector Dimitri Barlas v Joseph Paul Ghaleb is convicted of the offence. (ii) The defendant is fined $9,000 with a moiety to the prosecutor. (iii) The defendant is to pay the costs of the prosecutor as agreed or in the absence of agreement, as assessed. 33 In Matter No IRC 182 of 2008, the Court makes the following orders: (i) The defendant, Inspector Dimitri Barlas v S & M Halabi Pty Ltd as Trustee for Maybach Enterprises Trust t/as Maybach Enterprises is convicted of the offence. (ii) The defendant is fined $90,000 with a moiety to the prosecutor. (iii) The defendant is to pay the costs of the prosecutor as agreed or in the absence of agreement, as assessed. 34 In Matter No IRC 183 of 2008, the Court makes the following orders: (i) The defendant, Inspector Dimitri Barlas v Sayed el Halabi is convicted of the offence. (ii) The defendant is fined $9,000 with a moiety to the prosecutor. (iii) The defendant is to pay the costs of the prosecutor as agreed or in the absence of agreement, as assessed. __________________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.