District Court New South Wales Medium Neutral Citation: WorkCover Authority of New South Wales v Construere Projects Pty Limited [2014] NSWDC 310 Hearing dates: 15 December 2014 Decision date: 15 December 2014 Jurisdiction: Criminal Before: Kearns SC DCJ Decision: The defendant is convicted. The defendant is fined the sum of $37,500. I direct that moiety of the sum to be paid to the prosecutor. The defendant is to pay the prosecutor's costs agreed in the sum of $17,500. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - duty to ensure health and safety of workers SENTENCING - plea of guilty - appropriate discount - mitigating factors - foreseeability - circumstances – remorse - deterrence OTHER – installation of air conditioning unit – installer not qualified – that fact not known to defendant – defendant did not check installer's qualifications – circumstances explaining that lack of check – electrocution of installer – installer was the brother-in-law of Defendant's sole director – unusual circumstances in retention of installer – profound psychological effect on Defendant's sole director - significant remorse Legislation Cited: Work Health and Safety Act 2011, Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor); Construere Projects Pty Limited (Defendant) Representation: Counsel: Mr P Ginters, instructed by WorkCover NSW, appeared for the Prosecutor; Mr S.A. Adair, instructed by Danny Eid Lawyers, appeared for the Defendant Solicitors: File Number(s): 2014/105227 SENTENCE The plea 1. The defendant has pleaded guilty to a charge in a summons filed on 7 April 2014. The charge is that on 4 October 2012 the defendant having a duty under s 19(1) of the Work Health and Safety Act 2011 to ensure so far as reasonably practicable the health and safety of workers engaged by it failed to comply with the duty, and the failure exposed Peter Wahhab to risk of death or serious injury contrary to s 32 of the Act. The facts 1. The parties have usefully and conveniently provided a statement of agreed facts. They are contained in the prosecutor's tender bundle, exhibit A. Paragraphs 4 to 41 inclusive are relevant. They are as follows: "Background 4. At all material times, Construere Projects Pty Ltd (ACN 158 072 603) (Construere) was a registered corporation with its registered address at 192 Edgar Street, Condell Park in the State of New South Wales. 5. Construere was registered with ASIC on 4 April 2012. On 30 April 2012, Rabeea Wansa (Mr Wansa) was appointed as the director of Construere. 6. At all material times Construere was in the business of building services. Mr Wansa as the sole director, conducted quotes, engaged contractors and sometimes provided hands-on assistance with work tasks. 7. Construere was regularly engaged by Dib Group (ACN 002 889 474) (Dib) to undertake maintenance work as required at various sites owned and/or operated by Dib. The contract of engagement of Construere by Dib was not in writing. The work included the repair and installation of air conditioning units. 8. Dib was engaged in the wholesale and retail supply of fuel and petroleum products and was a franchisor of petrol stations. The petrol stations retailed as Metro Petroleum, a trade mark owned by Dib. Dib was granted a lease of Metro Petroleum at 220 Port Hacking Road, Miranda NSW (the site) by the owner, Karam International Pty Ltd (Karam). Mr John Dib was the sole director of both Karam and Dib. 9. Dib owned the electrical plant at the site. Dib subleased the site, including the electrical plant and equipment to Serhisa Pty Ltd (Serhisa). Under the terms of the lease agreement, Dib remained responsible for the repair of major items and replacement of air conditioning plant at the site. 10. At the time of the incident Serhisa operated the petrol station and convenience store at the site. 11. On or about 3 October 2012 Mr Dib contacted Construere and asked it to deal with an air conditioning problem at the site. Mr Dib told Construere he had a new air conditioning unit that could be used to replace the existing one at the site. Construere made arrangements to collect the new air conditioning unit from Dib's premises. 12. Construere subcontracted Peter Wahhab (trading as Southern Cross Air Conditioning) (Mr Wahhab) to undertake the work associated with installing the new air conditioning unit at the site. He was not licensed to do air conditioning or electrical work and did not have a contractor's licence. 13. Mr Wahhab had operated his own business, known as Southern Cross Air Conditioning since 2010. His clothing included a printed shirt marked Southern Cross Air Conditioning 0415 977 891 (being his mobile telephone number). 14. Construere sub-contracted Mr Wahhab to undertake air conditioning related work on a number of previous occasions. The Incident 15. On 3 October 2012 Mr Wansa, on behalf of Construere, and Mr Wahhab attended the site. They discussed the existing air conditioning unit and the fact that it was of no use and had to be replaced. Mr Wahhab provided Mr Wansa, on behalf of Construere, with a quote for the work to be done in installing the replacement air conditioning unit. 16. On 4 October 2012 Mr Wansa, on behalf of Construere, and Mr Wahhab arrived at the site around midday with the new air conditioning unit. 17. Mr Wahhab commenced his work installing the new air conditioning unit. He was working alone in the store room behind the console area at the site. 18. At about 4:00 pm Mr Mirukaj, director of Serhisa, and a staff member, Mr Podduturi, were at the console area of the premises. They heard a scream from within the store room. They entered the store room and saw Mr Wahhab unconscious on the floor of the store room area. 19. Mr Mirukaj called the national emergency number "000". Ambulance paramedics attended the premises but were unable to revive Mr Wahhab. 20. Mr Wahhab was transported to St George Hospital but was pronounced deceased on arrival. 21. A post mortem report dated 12 November 2012 determined Mr Wahhab's death was electrocution. 22. According to the Electric Shocks Report prepared by George Szczepac of Ausgrid dated 4 October 2012: 'It appears that the victim received a fatal electric shock when he made contact with the exposed live conductor and earth. The current path to earth could have been made by contact with either the frame of the switchboard surround, the metallic shelving or the concrete floor via the aluminium ladder.' 23. No one directly witnessed the incident. 24. A defect notice with nine improvement requirements was issued by Ausgrid in relation to the electrical installation at the site. A copy of that defect notice is annexed to this Statement of Agreed Facts. Systems of Work Prior to the Incident 25. The Home Building Act (NSW) 1989 (HB Act) requires that anyone undertaking electrical wiring work in the State of New South Wales, whether residential or otherwise, must hold a contractor licence or a supervisor certificate or a tradesperson certificate. This is required regardless of the cost of the work and irrespective of whether the work is residential, commercial or industrial. 26. The HB Act defines 'electrical wiring work' as the actual physical work of installing, repairing, altering, removing or adding to an electrical installation or the supervision of such work. 27. The HB Act defines 'specialist work' to include electrical wiring work or air-conditioning work. 28. The HB Act provides that an individual must not do specialist work nor air conditioning work (whether or not it is also residential building work) unless the individual is the holder of an endorsed contractor licence, a supervisor certificate, tradesperson certificate or is under the immediate supervision of the holder of such a licence or certificate. 29. The HB Act further provides that a person must not contract to do any specialist work except as or on behalf of the holder of a contractor licence authorising its holder to do that work. 30. Mr Wahhab was not the holder of a contractor licence, a supervisor certificate or a tradesperson certificate. Similarly, Southern Cross Air Conditioning was not the holder of such a licence or certificate. 31. Mr Wahhab had partly completed a TAFE Course in Certificate III Electrotechnology Refrigeration and Air Conditioning, (he commenced it in 2007), but did not complete the Course. His family members, including his father and brother informed police that they believed he had successfully completed his TAFE course and thereafter established his own business and was qualified to work with air conditioning. They stated that he had been doing this work for a number of years prior to his death. 32. Mr Wahhab was permitted to work at the site in close proximity to exposed conductors carrying live electricity using his own tools and equipment. 33. Construere did not ensure that Mr Wahhab was qualified to undertake the work he was doing at the site. 34. Construere did not ensure that Mr Wahhab was the holder of a Contractor Licence under the HB Act. 35. Construere did not have an adequate system in place to identify the scope of work to be conducted by workers including contractors at the site, in particular, whether this work would involve electrical wiring work or specialist work. 36. Construere did not have a system in place to ensure that workers, including contractors and sub-contractors had qualifications and were competent to conduct work at the site, including electrical wiring work or specialist work. 37. Construere did not engage in consultation with Mr Wahhab about the detailed nature of the work to be done at the site and in particular the nature of the hazards and risks associated with the work. 38. Construere did not make sufficient inquiries nor undertake sufficient research to familiarise itself with the nature of the work or the associated risks and hazards which Mr Wahhab would be exposed to whilst undertaking the work of installing the air conditioning unit at the site. Instead, Construere relied upon Mr Wahhab who was not competent to identify, assess, analyse nor manage the risk of electrocution associated with the work being done at the site. 39. Construere did not provide a system of work at the site which required that work of the kind being undertaken by Mr Wahhab was done with the distribution board de-energised. 40. Construere did no request a safe operating procedure, a safe work method statement or a risk assessment of the work that was to be undertaken at the site by Mr Wahhab. Cooperation during the investigation 41. Construere cooperated with WorkCover in the course of the investigation into the incident." 1. Paragraph 24 of that statement of agreed facts refers to a defect notice that was to have been annexed to the statement, and that was overlooked but later supplied. The content of the defect notice relevantly was: "1. The distribution board located within the store room was not provided with adequate space on all sides to enable persons to safely operate and adjust the electrical equipment. Note: Metal shelving and video surveillance equipment etc are obstructing safe access to the switchboard. 2. The live 2.5mm2 unsheathed active conductor connected to the line side of the main switch at the distribution board was found not terminated and resting on top of the switchboard panel. Note: Conductor disconnected by Inspector for safety. 3. The schedule provided for the distribution board could not be read where it was obstructed by the metal shelving. It is also recommended that the schedule is carefully checked by a licenced electrician to ensure the items listed are correct and correspond with their associated circuit protective device. 4. The 20 ampere circuit breaker enclosure located at the distribution board controlling the refrigeration unit, was not firmly fixed in position. 5. The plastic neutral link cover located behind the hinged panel of the distribution board could not be screwed into position to cover the C phase neutral link. Note: Temporarily made safe by Inspector. 6. Note: the 2.5mm2 twin and earth thermoplastic sheathed sub-circuit located at the distribution board was removed from the distribution board and temporarily made safe by the Inspector until the installation of the air-conditioning unit has been completed by a licenced electrical contractor. 7. The plastic cover enclosing the main switch at the main switchboard was not of a close fit to prevent access to live terminals where the cables entered the enclosure. Pole fillers are also required either side of the main switch. Note: Temporarily made safe by Inspector. 8. The plastic cover of the customer's neutral link located on the front of the hinged panel at the main switchboard was missing exposing the bare metal to inadvertent contact. Note: Temporarily made safe by Inspector. 9. The exposed tree roots located above ground level near the main switchboard presented a tripping hazard to persons accessing the main switchboard." The particulars 1. The particulars relied on by the prosecutor are contained in para 5 of annexure A to the summons and they are as follows: "The defendant failed to ensure the health and safety of its workers, in particular Mr Wahhab, in that it failed to take the following reasonably practicable measures to eliminate (or, alternatively, minimise if not reasonably practicable to eliminate) the risks to health and safety of its workers by not: (a) engaging only people who held electrical and/or air conditioning licences to undertake work involving the installation of air conditioning units; (b) having in place a system that required all workers to demonstrate that they were qualified and competent to carry out work associated with installing an air conditioning unit by requiring them to produce an electrical licence and/or an air conditioning licence; (c) identifying in consultation with Mr Wahhab the scope of the work required by him, the risks associated with that work and whether he held the appropriate qualifications and competencies to undertake that work." Sentencing 1. I need to bear in mind a number of matters. I need to bear in mind the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I need not itemise all of those purposes here. I need to bear in mind such relevant aggravating and mitigating factors as there are as enumerated in s 21A of that Act. I need to bear in mind the purpose of the Work Health and Safety Act which is to seek to ensure the health and safety of workers and others on worksite premises. 2. The objective seriousness of an offence is determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences in the event of the risk coming home, and the availability of measures to a defendant to avoid the risk. There was a foreseeability of the risk of injury in this situation in circumstances in particular where the person not qualified in air conditioning installation and electrical work was to carry it out and in circumstances where, if the task had been examined, it would have been seen that lines were to be run above the ceiling and to a distribution board. 3. Tab 7 of the tender bundle, annexure A, includes a document called 'witness statement' being apparently a record or a summary of an interview between an interviewer, Mr Troy Vitale, and an interviewee, Mr Sokol Mirukaj. It is apparent from that that Mr Wahhab installed the air conditioning unit within the shop and ran the air conditioning circuit through the false ceiling space and into the rear storeroom to connect to the electrical switchboard. Precisely what happened is not known, but in that document it is suggested that Mr Wahhab may have been standing on a metal stepladder while working at the electrical distribution switchboard when the incident occurred. 4. An investigation report by Mr Vitale at tab 8 of that tender bundle draws the conclusion that Mr Wahhab was carrying out electrical wiring at the time of the incident without the required qualifications in a situation where the defendant did not ensure that Mr Wahhab was qualified to undertake the work and did not ensure that he was the holder of a contractor licence under the Home Building Act, and did not have a system in place to identify the scope of the work to be conducted. It can be seen that the risk of injury was foreseeable. So too were the potential consequences. 5. In dealing with the seriousness of the incident, I note also that the defendant did not have a system in place to ensure that workers had qualifications and were competent to carry out work they were contracted to do. It did not engage in consultations with Mr Wahhab about the detailed nature of the work to be done on this occasion. 6. Remedial measures that would have avoided the risk of injury are fairly straightforward. In large measure, they are reflected in the content of the particulars of the offence that the prosecutor relies on and that I set out earlier in these reasons. The defendant acknowledges that it is guilty of the offence charged. 7. Mr Adair, who appeared for the defendant, in his submissions put forward a number of matters by way of mitigation. The first one he put forward concerned the unusual circumstances of this incident and he submitted that there were matters that went to the moral culpability of the defendant in this case. I will come back to that. 8. The second matter was that the defendant has shown remorse. I will come back to that. 9. The third matter is the submission that there is little or no risk of this defendant re-offending. It has put in place safety steps that it did not have in place at the time of the accident. It has taken a number of measures to ensure that this problem cannot happen again. 10. The background events underlying the occurrence of this incident have been so profound in their effect upon the sole director of the defendant that it is unlikely that he would countenance any such event happening again, or insofar as it was within his power, any breach of safety. I accept the submission that there is little or no risk of this defendant reoffending. 11. The fourth matter relied on by Mr Adair was that the defendant has no prior convictions. 12. The fifth matter was that it has assisted the prosecutor in the course of investigations in the prosecution. 13. The sixth matter is that it has entered an early plea. 14. I return to the first two matters. The first matter concerns the unusual circumstances giving rise to a lessened moral culpability in this case. The circumstances were unusual. I do not think anything is to be gained by pronouncing in these reasons the intimate detail of all those circumstances with the evocative reactions that that could cause. It is sufficient to note that Mr Wansa, the sole director of the defendant, and Mr Wahhab, the person with whom he contracted the undertaking of the installation of the air conditioning, were brothers-in-law. In many ways it is not surprising that Mr Wansa through Construere, the defendant, retained Mr Wahhab to do this work. Mr Wahhab had undertaken a TAFE course to obtain qualifications to equip him to do air conditioning work. The whole family was aware of that fact. He had not completed the course. The family was not aware of that. They were of the understanding that he had. He had represented to the family that he had completed the course and that he was qualified. 15. It is perhaps understandable that with that background an enquiry was not made in the circumstances as to the truth of that fact. 16. That position is enhanced by the further fact that Mr Wahhab had been carrying on business for a couple of years as an air conditioning installer and he had also been doing it contracting through Construere. He appeared to the outside world to be carrying on business as an air conditioning installer. He had his own work clothing, I think it was with a business mobile phone number on it. All this I think explains how it came to be that he was doing the work on this occasion. It does not detract from the guilt of the defendant, but I do accept the submission that it does lessen the moral culpability that might otherwise attach in the circumstances of this case. 17. In this context also it was submitted that the particular risk was not a foreseeable risk and this went to the fact that even if Mr Wansa had looked over the task, the particular risk being of an electrical nature would not have identified itself to him. That might be so. The problem really stems in the first place from having somebody unqualified doing the work. A reasonable person in the position of the defendant ought to have foreseen the risk. 18. I come to the other matter I deferred and that is remorse. I do not propose, as I indicated earlier, to set out in great detail matters going to the background that explain how this contract arose between Construere and Mr Wahhab. Nor do I propose to set out in great detail the particular effects that this tragic event has had on the family. I have been provided with two affidavits. One affidavit is of Clair Wansa. She is the wife of Mr Wansa, the sole director of Construere. The other affidavit I have been provided with is one of Sammy Wahhab sworn on 21 November 2014. He is the father of Peter Wahhab, the person who was tragically killed in the accident. 19. I have also been provided with a psychologist's report of a Ms Candalepas of 11 December 2014. This is not just any medico-legal report resulting from a medico-legal consultation for the purposes of the proceedings. She has been treating Mr Wansa since 9 October 2012. It is sufficient to note that she has diagnosed post-traumatic stress disorder and mercifully one which is likely to improve. 20. The affidavits I have referred to set out the tragic and unfortunate effects of this incident on the family and on Mr Wansa in particular. Whilst these go to the personal effect on Mr Wansa, however this case is about a corporate entity. A corporate entity can act only through a human person or persons. This corporate entity, the defendant, acts through Mr Wansa. I think it is fair to say that it has clearly demonstrated remorse in accordance with the submission that Mr Adair has put to me. Apart from the personal effect upon Mr Wansa, there are the effects that spill over into how he now runs the company in accordance with safe practices and his meticulous approach in seeing that safe practices are maintained. 21. I am not sure if I have mentioned deterrence in the course of these ramblings. To the extent that I have and am at the risk of repeating myself, both specific and general deterrence need to be considered in the circumstances of the events since the accident. Whilst specific deterrence is a factor, it is not a factor that looms large in the consideration of penalty. It is a consideration because the defendant continues in operation. However, it must be looked at in the context that it continues in operation with the new regime that has been put into place and also against the background that I have accepted that it is unlikely to re-offend. General deterrence nevertheless remains a consideration, but again the unusual circumstances of this accident come into play in considering general deterrence here. It is an unusual case where this set of circumstances arises where family members contract and the defendant having full faith in the other contracting party as being a fully qualified person and having good ground for that belief. It seems to me that that is not a situation that is likely to occur very often. 22. I have struggled with this case, but in all of the circumstances I think it is appropriate before any consideration of discount to set a fine of $50,000. I think a full discount of 25% is appropriate. That would result in a fine of $37,500. In the circumstances the defendant is convicted. The defendant is fined the sum of $37,500. I direct that moiety of the sum to be paid to the prosecutor. The defendant is to pay the prosecutor's costs agreed in the sum of $17,500. ********** 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: 24 March 2015