District Court New South Wales Medium Neutral Citation: WorkCover Authority of NSW v Karimbla Construction Services Pty Ltd [2014] NSWDC 287 Hearing dates: 16 September 2014 Decision date: 16 September 2014 Jurisdiction: Criminal Before: Curtis, J Decision: The defendant is convicted and fined Legislation Cited: Work Health and Safety Act 2011 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) Karimbla Construction Services Pty Ltd Representation: Counsel: B G Docking (Prosecutor) P J Bambagotti (Defendant) Solicitors: WorkCover Legal Services (Prosecutor) File Number(s): 2013/340229 Judgment 1. HIS HONOUR: On 12 May 2012 Mr John Kenny, a bricklayer, fell a distance of 3.2 metres from scaffolding when bricklaying at a development site at 2 Corea Street Sylvania. 2. At the time Mr Kenny was building a double-brick party wall between units 42 and 43 on the site. . The scaffolding upon which he stood was erected upon the floor of unit 42. He fell through the bricks of the green unset wall onto the floor of unit 43. Because the site descended steeply towards the waterfront the floor of unit 43 was some distance below the floor of unit 42. 3. The immediate cause of his injuries was that, contrary to building standards, no scaffolding had been placed within unit 43 to arrest his fall should he fall through the wall he was building. 4. The head contractor on site was Karimbla Construction Services Pty Ltd (Karimbla). Gemfen (Australia) Proprietary Limited, (Gemfen) subcontracted to lay the brickwork and construct appropriate scaffolding. 5. Karimbla pleads guilty to a charge that contrary to s 32 it failed to comply with its duty pursuant to s 19(1) of the Work Health and Safety Act 2011. 6. As a result of the accident Mr Kenny sustained multiple fractures to his ribs, a pneumothorax and fractured transverse processes of T2 to T5 vertebrae, a fractured sternum and lacerations and abrasions. . Although these are quite serious injuries, happily Mr Kenny completely recovered and returned to bricklaying work. 7. The injury occurred because a Mr Koumbaros, employed by Karimbla as a site supervisor, did not ensure that Gemfen erected the scaffolding pursuant to its duty. I accept that Karimbla had in place an adequate system for discharging its duty to ensure work health and safety, and that this incident occurred not from the want of a safe system but from the want of adversion by Mr Koumbaros. 8. Karimbla employed a national safety manager, Mr James Sykes. His role is to oversee safety risks and adherence to work health and safety on all its sites. Karimbla employed a safety officer on each site but in addition, Mr Sykes himself would attend upon each site at least once a week. 9. Karimbla had ensured a safety plan was in place for each individual subcontractor, including Gemfen. The subcontractor's employees onsite were inducted by Karimbla, and it also ensured each subcontractor conducted its own induction programme. Karimbla maintained a register to ensure this process was followed. 10. The safety officer employed by Karimbla onsite, Mr Koumbaros, was apparently skilled and experienced, holding a Certificate IV in Work Health & Safety. Mr Koumbaros ensured regular toolbox talks were held on the site. 11. A safety committee had been established for the site and Karimbla had required of each subcontractor that they themselves provide a supervisor to ensure the workers were applying the safety procedures. Each subcontractor's supervisor was to conduct a weekly work-based inspection check to be provided to the Karimbla safety officer to ensure any possible risk was identified. 12. The failure was not a systemic failure; it was a failure by Mr Koumbaros, who for the purposes of the legislation personified the company on this day. That failure is to be seen in the light of the evolving dynamic on a construction site where the scaffolding had to be changed every three or four hours. 13. Although it was a human failure of personal adversion nevertheless, the risk was foreseeable, the gravity of its consequence was illustrated by the actual injuries suffered by Mr Kenny, and given the height, the consequences could have included death. The measures necessary to eliminate the risk were simple and well-known and the scaffolding material being onsite, without cost. 14. I accept the subjective offence is at the lower end of culpability. I do not believe, given the offender's attitude to safety in general, that specific deterrence is a matter which weighs heavily in the balance. However, it is necessary the penalty reflect the desire for general deterrence and also reflect the circumstance that the maximum penalty provided by the legislature is $1.5 million. 15. The defendant has operated in the building industry since 2000 and has only effectively one conviction. That conviction was also a conviction in relation to a casual failure to oversee the conduct of others. I think this is a commendable record. 16. Mr Bambagiotti from the bar table, recites to me the remorse of Mr Sykes, who is present in court. I accept this as sufficient to demonstrate such remorse as is necessary to be reflected in the sentencing procedure. 17. In all the circumstances an appropriate fine is $100,000. In recognition of the plea of guilty and cooperation with the authorities this figure is reduced to $75,000. The defendant is convicted and fined $75,000. 18. I order that it pay to the prosecution costs agreed in the sum of $10,500 and I order a moiety of the fine be paid to the prosecutor. ********** 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. Decision last updated: 04 March 2015