Industrial Court of New South Wales CITATION: Inspector Michael Duncan v Glenpar Pty Ltd. Prosecution under s 10(1) of the Occupational Health and Safety Act 2000 [2007] NSWIRComm 290 PROSECUTOR: Inspector Michael Duncan PARTIES: DEFENDANT: Glenpar Pty Ltd FILE NUMBER(S): IRC 158 of 2007 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - s 10(1) - demolition and removal of fittings from store located in shopping mall - defendant principal contractor for refitting of shop - contractors engaged including contractor to demolish existing fittings and prepare shop for refurbishment - employee of contractor left unsupervised during demolition task - heavy bulkhead falls when support removed - employee seriously injured - failure of defendant to ensure contractors complied with scope of works - failure to provide contractors with adequate information about structures and ensure that work could be safety performed - failure to adequately monitor and supervise demolition work - serious breach established - need for general and specific deterrence - early plea - no prior convictions - subjective factors mitigate penalty - penalty imposed CASES CITED: Inspector Michael Duncan v Salim Sarkis [2007] NSWIRComm 222 HEARING DATES: 20 November 2007 EXTEMPORE JUDGMENT DATE: 20 November 2007 PROSECUTOR: Mr P Skinner of counsel SOLICITORS: WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mrs W Thompson of counsel SOLICITORS: Deacons JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 20 November 2007 Matter No IRC 158 of 2007 INSPECTOR DUNCAN v GLENPAR PTY LTD Prosecution under s 10(1) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2007] NSWIRComm 290 1 The defendant Glenpar Pty Limited ("the company") is described by its manager director, Mr Robert Sachs, as a small design and project management business established in 1987 and operating nationally. The company provides design and project management services to the retail industry. Since 1994 the company has been working with Esprit Australia Pty Limited ("Esprit"), undertaking design and management work at a number of Esprit stores. 2 In February 2005, Esprit had retained the defendant to perform demolition and fit out work at its retail store located at Warringah Mall. As the principal contractor for this work, the defendant engaged several contractors, including Mr Salim Sarkis. Mr Sarkis was engaged to complete the demolition work necessary to strip out the Esprit store and to make it ready for refurbishment. 3 The defendant also engaged a business known as Town & Country Shop Fitting and Joinery, ("Town & Country"), to control the site after the stripping out phase of the project had been completed. Mr Andrew McFarland, the owner of Town & Country, was also engaged by the defendant as its site supervisor to assist in the daily running of the site, including the overseeing of contractors and occupational health and safety compliance. 4 On Sunday 13 February 2005, Mr Sarkis and six demolition workers he had engaged were stripping out the Esprit store at Warringah Mall when an overhead bulkhead fell during the course of demolition, seriously injuring one of the workers, Mr Lorenzo Treglia. 5 In February 2007, Inspector Michael Duncan of the WorkCover Authority commenced proceedings against Mr Sarkis and the defendant alleging breaches of the Occupational Health and Safety Act arising from this workplace accident. Ultimately Mr Sarkis pleaded guilty to a breach of s 8(1) of the Act and the defendant company pleaded guilty to a breach of s 10(1) of the Act. 6 The particulars of the charge against the defendant under s 10(1) were that as an employer it had failed to ensure that people other than its employees, and in particular Mr Treglia, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work, in that the defendant failed to ensure that: (i) The subcontractors carrying out the 'strip out' work were provided with adequate information about the structure of the premises and the scope of work to be performed so that the premises were not rendered unsafe. (ii) The defendant failed to ensure that there was adequate monitoring and supervision of the subcontractors while the 'stripping out' work was being undertaken so as not to render the premises unsafe. It is against that background that this judgment deals with the evidence and submissions on penalty. 7 The evidence for the prosecutor included the following: an Agreed Statement of Facts; a certificate of prior convictions showing that the defendant had no prior convictions;, ASIC search records; various statements from WorkCover inspectors; a number of photographs of the work site; a quotation from Mr Sarkis, a construction order from the defendant, a scope of works document prepared by Mr Sarkis, the defendant's plan for demolition work, a later Town & Country occupational health and safety instruction and risk management document; and, extracts from the Occupational Health and Safety Regulation. The Agreed Statement of Facts will appear as an annexure to this judgment. 8 The evidence for the defendant was constituted by an extensive affidavit sworn by Mr Robert Sachs, the managing director of the company, together with numerous annexures relating to the defendant's systems of safety and its development over time. I do not propose to recount in detail all the matters covered in Mr Sachs' affidavit, but a number of matters require specific mention. 9 As already indicated the company, which is a Victorian company, was established in 1987 and it appears that, for a good deal of the time since then, Mr Sachs has been the principal of the company. His affidavit set out in detail his qualifications and he noted that, at the date of the incident, the company had approximately two full time employees and four contractors. At the date of this hearing that position had altered slightly with the addition of a few more contractors. 10 The on going commercial relationship with Town & Country was dealt with and, in particular, the relationship with Mr McFarland. He had been engaged over a period of years to carry out construction work and to act as the defendant's company representative and site supervisor at various projects. That company provided carpentry, labour and supervision of all other trade contractors on site. The arrangement had been in operation since 1998 and Mr Sachs noted that effectively and in substance Mr McFarland's role in the defendant company's business was analogous to that of an employed supervisor to the extent that the company had paid Mr McFarland's workers compensation as if he were an employee of the company. This arrangement appeared to particularly apply in relation to New South Wales as the defendant did not have any direct employees based in this state. 11 There was some detail about the consultation that usually occurred with Mr McFarland in relation to procedures, practices and safety issues on site, and the fact Mr McFarland was sent fit out guidelines, specifying the requirements of safety practices to be implemented on site and the on going discussions that took place in relation to those matters. Mr McFarland had long experience, some 21 years in carpentry and joinery and had worked as a site supervisor in the retail sector for over ten years. His qualifications and certificates were also set out in the affidavit. 12 It was mentioned that the defendant company had undertaken over 100 design and construction projects in the retail sector in New South Wales and there was also an explanation given as to the relationship with Esprit and how over the years that had worked out. 13 In relation to this particular store mention was made of the fact that, as part of the risk management of the project, the defendant had engaged structural engineers to determine structural work required and how that could be undertaken safely. It was accepted that the particular bulkhead that failed during demolition was not part of that expert consideration. That approach, however, goes to the usual practices of the defendant and its attention to safety. There was reference to a project manager employed by the company at the time of the incident and also the responsibility, in a sense, shared between Mr Sachs and Mr McFarland for the selection of appropriate contractors. 14 It was frankly accepted that the defendant did not have an adequate occupational health and safety management system that was fully documented at the time of the incident. Nevertheless, it was pointed out the way in which the arrangement with Mr McFarland operated, and, how under the usual (although not formally documented) system a number of steps were taken including site inspections, identification of hazards, consultations and the like when this work was to be performed. That was part of the usual safety process. 15 Here a job safety analysis and evidence of insurances were not required, although that would normally be part of the approach. There was not a requirement that a current construction induction card (previously called the green card) be held and some investigation of that matter was not on this occasion attended to, and here also it was expected that through Mr McFarland there would be a monitoring and supervision of the contractors on site. 16 As already mentioned there would normally be some prior site inspection. That occurred in this case but the essential and important matter for the point of this prosecution was the absence of a site specific job safety analysis. Mr McFarland would normally require that as part of the arrangement with the defendant and would require an induction to that site. Although arrangements were made for Mr Sarkis to attend for that purpose, that induction did not take place. Usually that would mean that work would not commence. Mr McFarland, although aware of Mr Sarkis having not undertaken the site induction, nevertheless took no steps to prevent Mr Sarkis commencing on site. 17 It was pointed out that the company was not aware at the time of the incident that not all of Mr Sarkis' contractors had attended the site induction, although Mr Sarkis had been specifically requested to do so. The defendant was also not aware that neither Mr McFarland, nor a representative he had arranged to attend at the site for the purposes of supervising the work, were not enforcing these measures and were not, in effect, constantly or over a significant time, actually at the site. 18 The affidavit sets out in some detail the steps taken after the incident and they are quite significant. There was a review of the safety systems undertaken initially by Mr Sachs and the company safety officer. An external risk management consultant was engaged to undertake a review of the company's safety procedures and the recommendations of that consultant were adopted. There was a review undertaken by the Master Builders' Association of the safety system and its recommendations were adopted. There was also a safety risk services company engaged and a review undertaken, and its recommendations were implemented. 19 The defendant's occupational health and safety management system was then documented, and that was exhibited and shown to be a lengthy and comprehensive document. It was said that this document was continually reviewed and updated. Some of the matters dealt with by that document were dealt with in the affidavit and in addresses. There were step by step check lists for the safety officer, the project manager, the site supervisor, and an information schedule in relation to specific jobs, how they were to be dealt with by those supervising, how auditing and safety meetings were to be conducted, the process for external on site audits, the completion of events such as accidents or minor incidents and near misses as an on going tool to ensure the system of safety was addressing the risks that were faced in the work being performed by the company, and also the issue of in-house training. 20 It was said that after the incident the defendant company had appointed a designated safety officer. The duties of that position were set out as well as the procedures developed in relation to the selection and the monitoring of the performance of contractors. A number of those matters have already been referred to and the details have been considered. 21 It was also indicated that the defendant had arranged for Mr McFarland to attend a four day refresher occupational health and safety site supervisor and consultation training course conducted by the Master Builders' Association and that the defendant had provided safety training for all its staff and those matters were dealt with in some detail in the affidavit. Also mentioned was the system of feedback regarding the company's safety systems, and the use of on site audits conducted by large companies such as Esprit and Westfield. 22 In relation to Mr Treglia, there was evidence of steps taken to enquire as to his progress, receiving updates as to his condition through the insurance company and what steps might be taken to assist in his rehabilitation. It was mentioned that there was co-operation with the WorkCover Authority and there was an expression of contrition and deep regret in relation to this accident and the injuries received by Mr Treglia, and those matters were also emphasised in addresses by counsel for the defendant. 23 It was mentioned that the defendant was a relatively small company with an annual operating profit, in draft documents presented to the Court for the year 2006 - 2007, of a little over $100,000. 24 It is against that background that the Court comes to consider the appropriate penalty that should be imposed in this particular case. The Court has had regard to the judgment of what has been referred to as the co-offender, Mr Sarkis (as reported in Inspector Michael Duncan v Salim Sarkis [2007] NSWIRComm 222) a judgment delivered on 24 August 2007. The particulars in Mr Sarkis' case were somewhat different, reflecting the different role that he played, and also having regard to the fact that he was engaged for the quite distinct task of demolition. In that case the Court found that the offence was a serious offence and pointed to the fact that, although it might be thought that the removal of a fit out from a shop in a shopping mall and demolition of that fit out might be regarded as a fairly low risk undertaking, the facts of that case indicated the error of that approach and while there was little doubt that much of the work might have been relatively light, nevertheless, the removal of the overhead bulkhead and metal construction was one that needed to be considered in some detail considering it weighed in excess of 160 kilograms. 25 Although the particulars of that case are different, that analysis applies to the present case. The essence of this case is really the lack of adequate information and the monitoring of contractors by the defendant. That is a point of distinction between this case and the case involving Mr Sarkis. The evidence shows a heavy reliance on Mr McFarland, a person of considerable experience: but the defendant accepted that in substance he was an employee and, therefore, the defendant had a clear responsibility for ensuring that he undertook his various tasks as the on site supervisor and that the safety measures that were to be implemented were in fact undertaken and that there was action taken to ensure that the safety measures laid down were actually implemented during the work. 26 Mr McFarland was aware that there was to be an induction. He was aware that no work was to be commenced if that was not undertaken and he knew that the induction had not been given, but he did not prevent Mr Sarkis from starting the work. He was also aware that no job safety analysis had been undertaken by Mr Sarkis. This was a failure of the defendant's system as well as Mr McFarland's obligations, and although it might be said that Mr McFarland's role was somewhat clouded by the arrangements whereby he acted as the site supervisor for the defendant, he effectively provided the defendant's safety systems at sites in New South Wales. 27 Having considered that material, the offence is properly to be considered as a serious breach of the Act but, nevertheless, one that properly fits in the lower end of the scale of penalties. 28 There is no issue that part of the penalty should reflect general deterrence. In relation to specific deterrence, counsel for the defendant points to the fact that there was in existence, although not adequately documented, a set of safety rules and a safety system and, more importantly, there had been extensive steps taken since then to document and put into operation a much more comprehensive safety plan. Those matters are to be taken into account, but it is to be noted that the defendant continues to operate in this industry, continues to have a small number of employees and largely performs the work through contractors. For that reason specific deterrence will have an important role in the setting of an appropriate penalty. 29 In relation to subjective factors, I accept that an early plea has been entered to an amended order for this prosecution, which was initially instituted claiming a breach of s 8(2) of the Act or in the alternative breach of s 10(1) of the Act. The s 8(2) allegation was not proceeded with and re-worded particulars were provided as part of an amended application for order. When that occurred, there was an immediate entering of a plea of guilty. In all of these circumstances this is an appropriate case where a discount of 25 per cent should be allowed. 30 As has already been recorded, this defendant has no previous record. It is a small company but it has a significant history and the nature of its business is to be properly understood, that is, it operates particularly through the use of contractors. Although it is a small company, the nature of the industry in which it engages in the use of contractors leads to the conclusion that it has a good safety record. 31 In submissions emphasis has been laid upon the system of safety that was in existence, although not well documented, and the reliance on Mr McFarland as demonstrating that this was not a business that was unmindful of its obligations in relation to safety. Since then, of course, there has been developed a most comprehensive and detailed safety system with the engagement of a number of outside consultants to assist in that process, external auditing and steps of that nature. That speaks well of the defendant's commitment to occupational health and safety. Its good record suggests that if its usual practices had been followed, and in particular by Mr McFarland or the person who was placed at the site when Mr Sarkis attended, this accident might well not have happened. The steps taken after the accident that address the risk that was exposed by the accident, as I have said, were considerable. 32 The evidence demonstrates the contrition of the defendant, not only by what is said in Mr Sachs' affidavit or as said by counsel on behalf of the defendant, but also by reference to the concerns for the injured employee, Mr Treglia, the enquiries made of him, and also by the early plea that was entered. Importantly there has been co-operation with the WorkCover Authority during the investigation. Those matters all serve to mitigate the penalty imposed. 33 There are two further matters that need to be considered. There was some evidence as to the modest profits of the defendant, although it was made clear that no application under s 6 of the Fines Act 1900 was being made, but that information was put forward generally to allow an assessment of the nature of the company, and the Court is prepared to operate on that basis in relation to the financial material, such as it is. 34 There was also reference to Mr Sarkis as effectively a co-offender and considerations of parity. Mr Sarkis clearly ran a very small business, often working on his own but in this case engaged a number of other employees. He was engaged for a specific part of the total contract of refurbishing the Esprit site. As the Court has already indicated, the circumstances of his offence are different, although the underlying causes are common to both cases. Ultimately, although the charges and particulars are different, there is significant similarity in the culpability of each of the defendants, but the Court concludes that the present defendant is slightly more culpable in relation to this incident having regard to its overall role as the project manager and principal contractor. Nevertheless, the differences in culpability are not large. ORDERS 35 Having considered all of those matters the Court makes the following orders: 1. The defendant is found guilty of a breach of s 10(1) of the Occupational Health and Safety Act 2000 as particularised in the amended application for order to which the defendant has entered a plea of guilty. 2. The defendant is fined the sum of $85,000 with half that amount to be paid to the prosecutor by way of moiety. 3. The defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS 1. At all material times the Prosecutor was an Inspector appointed pursuant to the provisions of the Occupational Health and Safety Act (NSW) 2000 and empowered by Section 106 of the Occupational Health and Safety Act (NSW) 2000 to institute proceedings in this matter. 2. At all material times GLENPAR PTY LTD [ACN: 006 832 622] ("Defendant") was a company duly incorporated and having its registered office situated at 242 Hawthorn Road, Caulfield North in the State of Victoria. 3. At all material times, Esprit Australia Pty Ltd ("Esprit") was the tenant of Shop 253 Warringah Mall, Old Pittwater Road Brookvale in the State of New South Wales ("site"). Esprit's principal business is that of a clothing retailer. AMP was the lessor of Warringah Mall where the Esprit site was located. 4. The Defendant, between 13 February 2005 and 14 February 2005 (inclusive), had control in the course of its trade, business or other undertaking of premises at Shop 253 Warringah Mall, Old Pittwater Road, Brookvale in the State of New South Wales, being premises used by people not in the Defendant's employment as a place of work, and not occupied as a private dwelling. 5. The Defendant, being a controller of the said premises, failed to ensure that the premises were safe and without risks to health to persons not in its employ contrary to section 10(1) of the Occupational Health and Safety Act (NSW) 2000 (the "OHS Act") in the manner particularised in the amended charge IRC No. 158 of 2007. 6. The particulars of the charge are: (a) The trade, business or other undertaking of the Defendant was the coordination of stripping out and fitout works particularly for an Esprit Australia retail premises located at Warringah Mall. (b) The persons who were not in the employment of the Defendant but who used the premises as a place of work at the relevant time were Salim Sarkis, Marco Campisi, David Hankinson, Chris Maurice, David Penney, Luke Pracy, and Lorenzo Treglia (The "subcontractors"). (c) The Defendant failed to ensure that the subcontractors carrying out the 'strip out' work were provided with adequate information about the structure of the premises and the scope of work to be performed so that the premises were not rendered unsafe. (d) The Defendant failed to ensure that there was adequate monitoring and supervision of the subcontractors whilst the 'stripping out' work was being undertaken so as not to render the premises unsafe. As a result of the said failures Mr Lorenzo Treglia was placed at risk to his health and safety and was seriously injured. Background 7. At all material times, Esprit retained the Defendant to perform work in relation to the fitout of its stores and associated work. The arrangement between the Defendant and Esprit was oral in nature. 8. Specifically, Esprit engaged the Defendant to perform strip out and fitout works at the site. ("Stripping out" is defined in Australian Standard AS2600:2001, 'Section 1.3.24 – Stripping' as: "The removal from a building of internal fittings, fixtures, services and non loading bearing elements.") 9. The Defendant had previously been engaged to perform similar work at other Esprit stores. The same contractual arrangement and practices were in place for all work carried out at Esprit stores, including the work to be undertaken at the Esprit site. The Defendant on those occasions and in relation to the present site would submit drawings on design and construction and documentation in relation to an estimated budget. Once approved by Esprit, the Defendant would implement the work by either employing a shopfitter to undertake all or most of the work or implement the work on a construction management basis. The latter was the method chosen by the Defendant for the strip out and fitout work at the Esprit site. 10. The total contract value of the demolition and fit-out works for the Esprit site at Warringah Mall was $657,138.55. 11. The Defendant, as the principal contractor for the project, directly engaged several subcontractors to work at the site. In particular, the Defendant engaged Mr Salim Sarkis, as the subcontractor to carry out the strip out work for the site. 12. The Defendant also engaged Mr Andrew McFarland, a sole trader, who traded under the name of Town & Country Shop Fitting and Joinery ("Town & Country") to act as the site supervisor and onsite representative for both the strip out work and the fitout work. This included Mr McFarland overseeing contractors. 13. The Defendant had a long standing agreement with Mr McFarland that extended over a period of nine (9) years in relation to work that was conducted on a construction management basis. This involved both work that Mr McFarland and Town & Country performed itself, as well as on sites where work was done on a construction management basis. Where work was to be done at sites on a construction management basis, Mr McFarland was engaged on each of those sites as site supervisor and the Defendant expected that all site activities would be supervised and controlled by him. This was also the case at the Esprit site where Mr McFarland was engaged by the Defendant to supervise all the work during the strip-out work and fitout work. 14. It was the understanding of both Mr McFarland and the Defendant that Mr McFarland, or one of his representatives, would act as the site supervisor and attend the Defendant's nominated worksite(s) to supervise the work undertaken. 15. At all relevant times, it was the Defendant's understanding that this arrangement also applied to the work to be carried out at the said Esprit site. The Defendant usually spoke with Mr McFarland on a daily basis and often more regularly. The Defendant would visit sites under its control on a fortnightly basis, or more frequently, if required. The Defendant itself had not visited the site between receiving Mr Sarkis' scope of works document and the commencement of work by Mr Sarkis on the understanding that Mr McFarland was the Defendant's onsite representative and supervisor, with clear instructions that he was to attend site to manage the contractors and works to be undertaken and that Mr McFarland did so on various occasions prior to the commencement of the work. 16. Mr McFarland was the Defendant's point of contact for subcontractors on the site and almost all communication with subcontractors was done through Mr McFarland. 17. In addition, Mr McFarland was engaged by the Defendant to perform the next stage of the work at the site – the refurbishment phase of the works (known as the 'fitout') after overseeing the stripping out phase of the work, which was to be completed by Mr Sarkis. 18. Prior to the commencement of work at the site, the Defendant sent to Mr McFarland the plans of the fitout work and the scope of works including the strip out. Mr McFarland was aware of what was required for a strip out as he had participated in demolition work at many other sites for the Defendant. The Defendant also requested of Town & Country a work method statement and programme of works. Town & Country provided a work method statement and programme of works in relation to the work at the site – i.e. the 'fitout' work. Those documents were reviewed by the Defendant, but did not relate to the strip-out work to be performed by Mr Sarkis. 19. Mr Sarkis did not provide the Defendant with any Safe Work Method Statement, nor did the Defendant or its representative, Mr McFarland, request one from Mr Sarkis. 20. Mr McFarland was requested by the Defendant to attend the site and to make an assessment of work to be undertaken. Mr Robert Sachs, the director of the Defendant also attended the site twice in the months preceding the incident. He also discussed with Mr McFarland how the work was to be undertaken and how safety was to be implemented on the site. Mr McFarland was also requested to meet with all of the subcontractors engaged to carry out work. In particular, Mr McFarland was requested to meet with Mr Sarkis and to go through the scope and extent of the strip out work as it was the first part of the work to be undertaken on the site. Mr Sarkis was instructed to contact Mr McFarland regarding onsite induction on the Friday afternoon preceding the incident. The Defendant did not take any other steps to ensure that Mr Sarkis attended the site and spoke to Mr McFarland prior to the commencement of work on 13 February 2005 on the understanding the Mr McFarland was the Defendant's onsite representative and supervisor. 21. As part of the preparation before the commencement of the agreed work, the Defendant also engaged engineers, Hughes Trueman Pty Ltd, being the engineers used by Warringah Mall to complete a report for the design and installation of a structural steel beam that was to be used as a replacement for an existing wall. The engineers did not inspect the bulkhead and pillars involved in the incident as that work was not regarded as part of the integral structure of the premises. The removal of the bulkhead and pillars was part of the agreed scope of works and was included in Mr Sarkis' quotation for the work. However, there was a common understanding and agreement by Mr McFarland and Mr Sarkis that the bulkhead was not to be removed until the fire sprinklers were capped and access could be gained from the ceiling. Incident 22. After receiving the Defendant's approval of his quotation, to commence work, Mr Sarkis engaged six (6) persons to perform work at the site. Mr Lorenzo Treglia, an employee of Mr Sarkis, was one of the six (6) persons employed as labourers by Mr Sarkis for the strip out at the site. 23. Mr Sarkis, although requested by the Defendant to meet Mr McFarland at the site prior to work commencing to discuss the scope of work, failed to do so. Mr Sarkis did however, have a conversation prior to the commencement of work with Mr McFarland as to the scope of works. 24. Mr McFarland had instructed one of his contractors, Mr Mark Rowcliff, to be at the site and give access to Mr Sarkis on 13 February 2005. The work to be carried out by Mr Sarkis and his contractors was the removal of all free standing joinery, removal of the counter and credenza, partition walls and floor tiles. The bulkhead was not to be moved until the ceiling had been taken out. 25. On arriving at the site at about 7pm Mr Sarkis immediately commenced work. Mr Sarkis did not inform the Centre Management of Warringah Mall of his arrival and work had been underway for approximately one hour before the security guard, Mr Adam Carrieri, intervened. Mr Carrieri had the workers sign the Warringah Mall Contractor Access Register and provided identification stickers confirming their presence on site. 26. According to Mr Sarkis, when he arrived he met Mr Rowcliff. Mr Rowcliff instructed Mr Sarkis not to touch the ceiling as the fire sprinklers were not being disabled until the following day. Mr Rowcliff then left the site. 27. Mr Sarkis a short time later rang Mr McFarland to confirm which internal fittings were to be removed, as he was concerned that Mr Rowcliff did not know for certain what was to be removed. Mr McFarland confirmed what had to be removed including that the bulkhead was not to be removed before the sprinklers had been capped off. An electrician present at the site had disconnected the power apart from the storeroom area. 28. After commencing work, Mr Sarkis and his workers had, in a short period of time, removed a section of ceiling, a small section of plasterboard from a concrete wall, some floor tiles, shelving, storage units, and had partially removed the original shop frontage and a small amount of the resulting debris. By that time, Mr Sarkis estimated that there were about three bins of rubbish to be removed. This was loaded onto his truck between 10.30 – 11.00 pm. He then left the site shortly after this time to take the rubbish to Artarmon Waste Transfer Station. Prior to leaving the site, Mr Sarkis did not arrange for anyone else to act as supervisor. 29. The shop frontage was originally designed and constructed taking into account the corner location of the tenancy. Mr Sarkis delegated the task of removing the section of shop front adjacent to the entrance to Mr Treglia and Mr David Penney. Prior to leaving for the tip, Mr Sarkis did not make any arrangements for a competent person to oversee the site. In Mr Sarkis' absence his employees continued to work unsupervised. 30. Starting on the side of the site adjacent to Shop 256, Mr Treglia and Mr Penney undertook the task of removing the glass window panes and associated framework along the front of the site. 31. Upon completion of that task, they moved on to the pillars below the yellow bulkhead that spanned the northernmost end of the two shop entrances. 32. Immediately prior to the incident, Mr Treglia was working with Mr Penney to remove the vertical pillars (which were, in fact, attached to the bulkhead). Mr Penney and Mr Treglia had conducted a visual check from the ground and had (mistakenly) formed the opinion that threaded metal rods, known as booker rods, supported the bulkhead. They concluded that the metal rods were attached from the concrete above to connect the aluminium sections (yellow in colour) protruding from underneath the bulkhead. According to Mr Penney neither he nor Mr Treglia had intended to remove the bulkhead and nor was there any instruction from Mr Sarkis for them to do so. 33. Using a mattock, pinch bar and other hand held tools, Mr Penney and Mr Treglia demolished the right-hand-side pillar of the northern entrance. The bulkhead at this stage remained in place supported by the threaded rod attached to the yellow tracking and the remaining pillar. Mr Penney and Mr Treglia then set about the task of removing the left-hand-side pillar. 34. Mr Penney was in the process of removing the yellow panelling from the rear face of the left-hand-side pillar with a mattock, He had his back towards Treglia who walked underneath the bulkhead, Mr Marco Campisi observed Mr Treglia standing underneath the bulkhead when, without warning, the right hand side of the bulkhead broke away from its ceiling supports and fell on Mr Treglia. The left-hand-side pillar was unable to sustain the free-falling weight of the bulkhead, resulting in the bulkhead entirely separating from the pillar. Consequently, the entire bulkhead fell onto Mr Treglia, pinning him to the floor. 35. Mr Treglia received assistance from a fellow worker until paramedics arrived and stabilised him. He was taken by ambulance to Royal North Shore Hospital where he was admitted to the Emergency Department. 36. NSW Police attended the site and secured the site. 37. The injuries sustained by Mr Treglia were significant and included: head injuries including skull fracture and brain injury resulting in loss of consciousness for a period of approximately four (4) weeks: lacerations to the head causing scar tissue; nerve damage to the right side of the face resulting in loss of movement; loss of upper front tooth; lacerations to the lower lip causing loss of sensation and scarring; fractured ribs and a fractured right pelvis. 38. As a result of the incident, Mr Treglia suffered total amnesia from late afternoon on 13 February 2005 (the day of the incident) until he regained consciousness whilst convalescing in Royal North Shore Hospital. 39. Mr Treglia remained in hospital until 23 March 2005 and required continuing medical rehabilitation for more than a year after the incident. Investigation 40. WorkCover attended the site on Monday 14 February 2005, following notification of the incident. 41. Upon attending the site, WorkCover Inspector Nathan Hamilton made observations of the site, taking photographs of the site, and undertook a factual inspection. 42. Inspector Hamilton issued Prohibition Notices in relation to the site. The Defendant's monitoring of the activities at the premises prior to the incident 43. Mr Sarkis was instructed to perform the stripping out work outside of the Esprit store's normal trading hours, in accordance with Warringah Mall's policy that such work be carried out at these times so as to have minimal impact on Warringah Mall's trading operations. 44. At the time of the incident the Defendant was unaware that Mr McFarland had not met with Mr Sarkis as requested or that Mr Sarkis had not been inducted. On 11 February 2005, the Defendant had contacted Mr McFarland to ensure that the inductions for contractors had been arranged. Mr McFarland confirmed that the inductions had been booked. 45. Mr McFarland's only contact with the subcontractor, Mr Sarkis, prior to the stripping out work commencing at the site, was by telephone. 46. The Defendant was unaware until after the incident that neither Mr McFarland nor one of his representatives was present at the site to supervise the work of Mr Sarkis and his workers. After the incident it was found that the construction of the bulkhead was attached to the internal face of the supporting pillars. 47. The Defendant did not become aware until after the incident that some of Mr Sarkis' workers did not have a current Construction Induction Card. 48. At the time of the incident, the Defendant did not have a formal OHS management system. It managed OHS primarily through Mr McFarland and the OHS systems he had in place for Town & Country. The Defendant's practice was to adopt the site safety rules and procedures prepared by Mr McFarland because Mr McFarland was considered an integral part of the Defendant's business and was the Defendant's onsite representative and supervisor. However, the Defendant did review relevant safety documentation and in particular that provided by Town & Country. 49. The Defendant was the principal contractor for the work and in that role it had the responsibility to ensure that there was in place a site specific OHS Management Plan The Defendant did not prepare such a Plan. 50. The Defendant did not provide site-specific inductions in relation to the site. The Defendant relied upon the general occupational health and safety requirements imposed by the Warringah Mall centre management. The Warringah Mall induction was not designed to include site-specific hazards in relation to construction work such as the stripping out and fit-out of the site. 51. The Defendant's site supervisor, Mr McFarland, arranged a meeting with Mr Sarkis to ensure that a risk assessment was completed prior to work commencing. However, Mr Sarkis failed to attend this meeting. Consequently, an on site inspection never eventuated but Mr Sarkis was permitted both by Mr McFarland and Mr Rowcliff to commence stripping out work without a pre-work risk assessment. The Defendant had not been advised by Mr McFarland that no pre-work risk assessment had been completed. 52. The Defendant did not ensure that prior to the commencement of the work Mr Sarkis had supplied a Safe Work Method Statement (SWMS) or Job Safety Analysis (JSA). The Defendant's representatives did not see these documents until after the incident. Subsequent to the incident 53. After the incident, the management of Warringah Mall instructed the Defendant to ensure that Mr Sarkis did not return to perform work at the site. Mr Sarkis did not return to the site. 54. Inspector Nathan Hamilton issued a Prohibition Notice (No. 7-76651) on 14 February 2005. 55. The Defendant took action to comply with the Prohibition Notice so that work on the project could continue once the risks to health and safety identified in the Prohibition Notice had been addressed. Cooperation with investigating authority 56. The Defendant cooperated with WorkCover throughout the investigation. Plea of Guilty 57. The Defendant entered a plea of guilty at the earliest opportunity after settlement of the amended form of the charge and is entitled to have this taken into account at the time of sentencing. No Prior Convictions 58. The Defendant has no prior convictions under the Occupational Health and Safety Act 2000 (NSW). Consequently the maximum penalty for this offence is $550,000 - the Defendant being a corporation. Moiety 59. The prosecution seeks a moiety of any fine that the Court may decide to impose. Costs 60. The prosecution seeks its reasonable costs and disbursements in an amount as agreed with the Defendant, or failing agreement, as assessed. oo00oo 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.