Industrial Court of New South Wales CITATION: Inspector Michael Duncan v Salim Sarkis [2007] NSWIRComm 222 PROSECUTOR: Inspector Michael Duncan PARTIES: DEFENDANT: Salim Sarkis FILE NUMBER(S): IRC 159 of 2007 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(1) - demolition and removal of fittings from shopping mall store - workers left unsupervised - heavy bulkhead falls when support removed - employee seriously injured - failure to adequately assess and control risks associated with dismantling and removal of bulkhead - failure to ensure systems of work appropriate for type of work - serious breach - need for general and specific deterrence - early plea - no prior record - penalty imposed. HEARING DATES: 24 August 2007 EXTEMPORE JUDGMENT DATE: 24 August 2007 PROSECUTOR: Mr P Skinner of counsel SOLICITORS: LEGAL REPRESENTATIVES: WorkCover Authority Legal Group DEFENDANT: In person JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 24 August 2007 Matter No IRC 159 of 2007 INSPECTOR MICHAEL DUNCAN v SALIM SARKIS Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2007] NSWIRComm 222 1 Mr Salim Sarkis works in the building and construction industry performing demolition work, strip-outs and rubbish removal. On Sunday night, 13 February 2005, he was engaged with six persons he had employed in the demolition of the fittings and associated fit out of the Esprit shop in the Warringah Mall. This work was performed out of business hours as required by the management of Warringah Mall. 2 During the course of this work a large bulkhead was required to be removed. Before this particular work got underway Mr Sarkis left the work site to transfer building debris to a waste station in Artarmon. No arrangements were made for a competent person to oversee the work during Mr Sarkis' absence and the work continued unsupervised. 3 During the course of removing vertical pillars attached to a bulkhead, ultimately the overhead bulkhead collapsed, seriously injuring one the labourers, Mr Lorenzo Treglia. The incident was investigated by the WorkCover authority and in February 2007 proceedings were commenced against Mr Sarkis, alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000. A charge under s 9, in the alternative, was not pressed. 4 Mr Sarkis has entered a plea of guilty to an amended application for order. The charge was that being an employer between 13 and 14 February 2005 at the Warringah Mall he failed to ensure the health safety and welfare at work of all his employees and in particular Lorenzo Treglia, contrary to s 8(1) of the Occupational Health and Safety Act 2000. The particulars of that charge were as follows: (a) The defendant failed to adequately assess and control the risks associated with the dismantling and removal of the bulkhead and pillars at the entrance to the Esprit in Australia store; (b) The defendant failed to ensure that the systems of work for dismantling the bulkhead and pillars outlined in the safe work method statement, were appropriate for that activity; (c) The defendant failed to provide such information, instruction, training and supervision as was necessary to ensure the health and safety of his employees, particularly in relation to the structures that were to be dismantled and removed and the means by which these structures were supported and to ensure that the employees were aware of the contents of the safe work method statement. 5 The last reference to "ensuring employees were aware of the safe work method statement" was not pressed in light of documents placed before the Court and information passed by Mr Sarkis to the prosecutor. This judgment deals with the evidence and submissions on sentence. 6 For the prosecutor, the following documents were tendered: an Amended Application for Order; an Agreed Statement of Facts; a folder of documents containing photos, plans, quotations and factual reports and indicating that Mr Sarkis had no prior record of conviction; and, copies of a work method statement and a job safety analysis. The agreed statement of facts will appear as an annexure to this judgment. 7 Mr Sarkis, who appeared in person, did not give evidence or place any other documents into evidence. He briefly addressed the Court about drawing to the attention of the workers the contents of the work method statement and job safety analysis. He had given no instruction to work on the bulkhead whilst he was absent. It may be noted that the demolition job had an estimated duration of a few days. He said he had fallen behind with his taxes and that he had lost a valuable work contact because of the bankruptcy of that business. He works substantially as a subcontractor. The prosecutor drew to the attention of the Court the fact that Mr Sarkis in his dealing with the WorkCover Authority, including during the course of the proceedings in Court, had expressed his contrition. It is against that background that the Court considers this breach. 8 It is firstly necessary to consider the objective seriousness of this offence. It might be thought that the removal of a fit out from a shop in a shopping mall might be a fairly low risk undertaking. The facts of this case indicate the error of that approach. There is little doubt much of the work would be relatively light but here an overhead bulkhead of metal construction was to be removed and, as the Court has been informed, weighing in excess of 160 kilos. 9 The employee who was engaged in this task with another, Mr Lorenzo Treglia, became pinned under the bulkhead as it fell and swung and dropped, and he suffered significant injuries. He had head injuries including a skull fracture, he suffered brain injury resulting in loss of consciousness for a period of approximately four weeks, he had lacerations to the head causing scar tissue, he suffered nerve damage to the right side of the face resulting in loss of movement, he lost an upper front tooth and had lacerations to the lower lip causing loss of sensation, scarring, and he suffered fractured ribs and a fractured right pelvis. After the incident he suffered total amnesia from late afternoon on 13 February 2005 until he regained consciousness while convalescing in Royal North Shore Hospital. Mr Treglia remained in hospital until 23 March 2005 and required continuing medical rehabilitation for more than a year after the incident. 10 It is well understood in this jurisdiction that the injuries received or even the absence of injuries does not necessarily reflect the objective seriousness of an offence. Here, the injuries serve to indicate that this was indeed a serious breach. The task to remove this weighty metal overhead bulkhead was not adequately addressed by the work method statement or the job safety analysis. While it would have been of some benefit to have worn a hard hat as part of the safety equipment and to keep the area clean and clear and to work off a scaffold rather than working on a ladder, none of that really addressed the issue here which would seem to have been undetected, namely, that this overhead bulkhead was weighty and that the removal of its supports would result in the risks particularised. These were matters that, as the demolisher, Mr Sarkis was required to consider and to take whatever steps were reasonable such as an inquiry of those who knew about this shop, namely, the head contractor. Unfortunately, none of that was done. 11 The seriousness of the offence is further underlined by the fact that there was no experienced person left in charge to supervise the work. Mr Sarkis pointed out that he gave no direction that this work be performed in his absence but he did not take any steps to ensure that this part of the work was not performed while he was absent. All of those matters lead to a conclusion that a serious breach of the Act occurred in the course of work at this Esprit store in February 2005. 12 It is also necessary to consider general deterrence. There is force in the prosecutor's submission that work of this nature is conducted quite regularly in the building and construction industry in its various facets. This episode should serve as some warning, especially to those who work as Mr Sarkis does either subcontracting or working on his own, that a lot more needs to be done to assess the risks of the job before undertaking the task, especially when demolition is involved. Specific deterrence is required to be considered. Mr Sarkis continues to work in this industry. He says he usually acts as a subcontractor but from time to time, as occurred on this occasion, he also engages a number of people who are experienced in the industry but, as has been agreed in the statement of facts, not experienced sufficiently for the type of work that was involved in the removal of the weighty bulkhead without some further assistance and supervision. 13 In relation to subjective factors, it is agreed that there was an early plea. I have looked at the Court record and I agree with that submission. It is appropriate in this case that there be a discount of 25 per cent of the penalty in recognition of that fact. Mr Sarkis has a clean record. He has worked in this business, he tells the Court, for some seven years. That is a record which is entitled to be regarded as a good safety record considering the type of work in which Mr Sarkis engages. Contrition is shown not only by the plea but by what has been submitted, quite properly by counsel for the prosecutor, to be expressions of contrition made by Mr Sarkis to the WorkCover Authority. Although representing himself, he did not mention this and the Court is better informed as a result of this action by counsel for the prosecutor. The Court was also informed that there has been cooperation with the WorkCover Authority in this investigation and that is an important matter to take into account. Those remaining matters all serve as additional factors in mitigating penalty, which here is a maximum of $55,000. 14 Having considered those matters, the Court makes the following orders: 1. The defendant is found guilty of a breach of s 8(1) of the Occupation Health & Safety Ac t 2000 as particularised in the Amended Application for Order to which the defendant has pleaded guilty. 2. The defendant is fined the sum of $8,500 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. 15 I note in relation to the issue of costs that a range of between $5,000 and less than $10,000 has been indicated. It would seem to me costs at the lower end of that range would be appropriate in this case. Mr Sarkis has also been advised of his ability to apply to the Registrar for time to pay if he wishes to take that course. It should be mentioned in closing that in recognition of Mr Sarkis's being legally unrepresented in these proceedings, counsel for the prosecutor offered a number of concessions and clarifications of the matter and drew attention to factors favourable to Mr Sarkis that might not otherwise have come to the attention of the Court. In so doing, he acted not only according to best prosecutorial practice but also in accordance with the finer traditions of the Bar. The court appreciates that assistance. 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 2000 and empowered by s 106 of the Occupational Health and Safety Act 2000 to institute proceedings in this matter. 2. At all material times SALIM SARKIS ("the defendant") was a sole trader and having its business address at 9 Coonong Road, Concord West, 2138 in the State of New South Wales. 3. At all material times the defendant was an employer. 4. The defendant, being an employer, between 13 February 2005 and 14 February 2005 at Warringah Mall, Old Pittwater Road, Brookvale in the State of New South Wales ("the premises") failed ensure the health, safety and welfare at work of all his employees, in particular Lorenzo Treglia, contrary to s 8(1) of the Occupational Health and Safety Act 2000. 5. The particulars of the charge are: a) The defendant failed to adequately assess and control the risks associated with the dismantling and removal of the bulkhead and pillars at the entrance to the Esprit Australia store; b) The defendant failed to ensure that the systems of work for dismantling the bulkhead and pillars, outlined in the Safe Work Method Statement, were appropriate for that activity. c) The defendant failed to provide such information, instruction, training and supervision, as was necessary to ensure the health and safety of his employees, particularly in relation to the structures that were to be dismantled and removed and the means by which these structures were supported, and to ensure that employees were aware of the contents of the Safe Work Method Statement. 6. As a result of the said failures Lorenzo Treglia was placed at risk to his health and safety and was seriously injured Overview 7. Between 13 February 2005 and 14 February 2005, Warringah Mall, Old Pittwater Road, Brookvale in the State of New South Wales ("the premises"), was the place of work of the defendant and his employees. 8. 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. Esprit's principal business is as a clothing retailer. 9. At all material times, Esprit retained Glenpar Pty Ltd ("Glenpar") to perform work in relation to the fit out of its stores and associated work. 10. Consequently, Esprit engaged Glenpar to perform demolition and fitout works at the Esprit store at Warringah Mall ("The Esprit site"). Glenpar had previously been engaged to perform similar work at other Esprit stores. 11. Glenpar, in its capacity as the principal contractor, directly engaged several contractors to work at the Esprit site. 12. Glenpar engaged Salim Sarkis ("the defendant") to complete the 'strip out' work for Esprit's Warringah Mall store. ('Stripping out' is the process of removing existing fixtures in order to make it ready for the later installation of new fixtures). 13. The defendant engaged six (6) persons to perform work at the Esprit site. Lorenzo Treglia, an employee of Salim Sarkis, was one of the six (6) persons employed as labourers by the defendant at the Esprit site. 14. The defendant was instructed to perform the stripping-out work outside of the 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. 15. The defendant attended Warringah Mall on the evening of Sunday 13 February 2005 and immediately went to Shop 253 (the Esprit site) to commence work. The defendant did not inform the Centre Management of his arrival and work had been underway for approximately one hour before the security guard, Adam Carrieri, intervened. Carrieri had the workers sign the Warringah Mall Contractor Access Register and provided identification stickers confirming their presence on site. 16. After commencing work at approximately 7:00pm, the defendant 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, the partial removal of the original shop frontage and a small amount of the resulting debris. 17. The shop frontage was originally designed and constructed taking into account the corner location of the tenancy. The defendant delegated the task of removing the original shop front to Mr Treglia and David Penney. 18. Starting on the side of the Esprit store 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 Esprit store. 19. Upon completion of that task, they moved on to the yellow bulkhead and pillars that spanned the northernmost of the two shop entrances. 20. By late evening (approximately 11:00pm), Mr Sarkis himself had left the Esprit site in order to drive a tip truck containing waste (in the form of building debris) to the Artarmon Waste Transfer Station. Prior to leaving, Mr Sarkis did not make any arrangements for a competent person to oversee the site. In his absence his employees continued unsupervised. 21. Immediately prior to the incident, Mr Treglia was working with Mr Penney to remove the vertical pillars that were attached to the bulkhead. Mr Penney and Mr Treglia had conducted a visual check from the ground and 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. 22. Using a typical garden mattock and other small hand tools, Penney and Treglia totally 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. Penney and Treglia then set about the task of removing the left-hand-side pillar. 23. 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. Marco Campisi ("Campisi") observed Treglia standing underneath the bulkhead when, without warning, the right-hand-side of the bulkhead broke away from its ceiling supports and fell on 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 Treglia, pinning him to the floor. 24. 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. 25. NSW Police attended the Esprit site and secured the site. 26. 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. 27. 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. 28. Mr Treglia remained in hospital until 23 March 2005 and required continuing medical rehabilitation for more than a year after the incident. Investigation 29. WorkCover attended the site on Monday 14 February 2005, following notification of the incident 30. Upon attending the site, WorkCover Inspector Nathan Hamilton made observations of the site, taking photographs of the site, and undertook a factual inspection. 31. Inspector Hamilton issued Prohibition Notices in relation to the site. Plea of Guilty 32. The defendant entered a plea of guilty at the earliest opportunity and is entitled to have this taken into account at the time of sentencing. No Prior Convictions 33. The defendant has no prior convictions under the Occupational Health & Safety Act 2000. Consequently the maximum penalty for this offence is $55,000 – the defendant being an individual. Co-operation with the investigating authority 34. The defendant has co-operated with WorkCover throughout its investigation of this incident. Moiety 35. The prosecution seeks a moiety of any fine that the Court may decide to impose. Costs 36. The prosecution seeks its reasonable costs and disbursements in an amount as agreed with defendant, or failing agreement, as assessed. 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