District Court New South Wales Medium Neutral Citation: SafeWork NSW v Rock Form Group Pty Ltd [2018] NSWDC 252 Hearing dates: 10 July 2018 Date of orders: 14 September 2018 Decision date: 14 September 2018 Jurisdiction: Criminal Before: Strathdee, DCJ Decision: 1. The offender is convicted. 2. I impose a fine of $127,500.00. 3. I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. 4. I order the offender to pay the prosecutors costs as agreed in the sum of $62,500.00. Catchwords: CRIMINAL LAW – prosecution – work health & safety – duty of persona undertaking business – risk of death and serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty COSTS – prosecution costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Cases Cited: Baumer v R (1998) 166 CLR 51 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Nash v Silver City Drilling (NSW) Pty Limited ; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96;93 NSWLR 338 R v Wilkinson (No. 5) [2009] MSWSC 432 Category: Sentence Parties: SafeWork New South Wales (Prosecutor) Rock Form Pty Ltd (Offender) Representation: Counsel: R Reitano appeared for the Prosecutor M Snedden appeared for the Offender Solicitors: SafeWork NSW Legal Services (Prosecutor) Ai Legal (Offender) File Number(s): 2017/386198 Publication restriction: None Judgment 1. On 10 July 2018 Rock Form Pty Ltd ('the offender') pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 ('the Act'), by failing to comply with its health and safety duty imposed upon him by s. 19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the offender's business or undertaking and in doing so exposed an individual to a risk of death or serious injury. 2. This offence, in the case of a corporation, carries the maximum penalty of $1,500,000. 3. The offence was committed at a construction site located at 1 Victoria Avenue, Ashfield on 12 January 2016. At that time and place there were workers working in the offender's business that were exposed to a risk to their health and safety. One of the workers exposed to the risk was Bikay Kusimweray ('Kusimweray') who, as a result of being exposed to the risk, was actually injured when the risk came home. 4. The prosecutor tendered an Agreed Statement of Facts and an Agreed Tender Bundle which forms the basis of the background set out below. BACKGROUND 1. The offender was a registered corporation that conducted business or undertaking which provided formwork, steel and concrete services. Mr Thomas Kayrouz ('Kayrouz') was the director of the offender. 2. Deicorp Pty Ltd ('Deicorp') was a registered corporation which provide construction services as a principal contractor engaged in the construction of a five storey residential complex located at 1 Victoria Street, Ashfield ('the workplace'). Mr Fouad Deiri ('Deiri') was the director of Deicorp. 3. Deicorp was engaged by the owner of the workplace Surewin Australia Pty Ltd ('Surewin') to construct a residential complex at the workplace. In constructing the residential complex at the workplace, Deicorp contracted the services of the offender to supply and install formwork, steel and concrete. ROCK FORM and DEICORP AGREEMENT 1. The offender and Deicorp entered into an agreement 'AS2545-1993 Construct Only Subcontract (Amended)' ('the contract') on 14 July 2015, with the offender being described in the contract as the 'subcontractor'. The contract provided that the scope of the works for which the offender was responsible included 'supply, erection and dismantling of all formwork, covering, propping, shoring, boards, bearers and the like.' It also provided that the offender was responsible for 'stripping and removing formwork to deliver outcomes in the project construction program' which was taking place on the site at 1 Victoria Avenue, Ashfield. 2. The contract provided that such formwork be stripped and removed in a safe manner, and also provided as follows: 'Deicorp would supply all fall protection measure material but the sub-contractor would install and maintain all protection measures while on site for all, unsafe locations on site including (but not limited to); voids, lift shaft opening drops of greater than 800mm. Edge protection was to remain in place until not required to WHS/OHS requirements.' 1. The contract also provided that subcontractors must familiarise themselves with the site before carrying out any work, and that the subcontractor was to ensure the extent and duration of the works was totally supervised at all times by a competent and experienced supervisor. Scaffold would be provided by Deicorp if required and Deicorp would inform the offender of the construction schedule and program and whether materials were ready to be stripped at the workplace. 2. Deicorp employed Mr Luke Fitzgerald ('Fitzgerald') as the workplace's foreman and Mr Charbel Elazi ('Elazi') as the leading hand for the workplace. 3. Deicorp contracted Sydney Hoist and Scaffolding Pty Ltd ('SHS') to erect and install perimeter health & safety scaffolding at the workplace. Mr Maulik Soni ('Soni') was SHS's engineer and was responsible for designing and inspecting the scaffold. Mr Charlie Charlie ('Charlie') was SHS's leading hand. 4. Rock Form subcontracted LG Group (NSW) Pty Ltd ('LG Group') to do formwork at the workplace. LG Group further engaged Yelchen Formwork Pty Ltd ('Yelchen') for general stripping and cleaning of formwork. 5. LG Group employed Mr Khander Dabeet ('Dabeet') as foreman for the workplace. He was present at the workplace daily. His responsibilities included management of the formworkers at the workplace, day-to-day management for the workplace for Rock Form and induction of workers. Dabeet reported to Diecorp's foreman, Fitzgerald, and was directed by Diecorp's foreman as to the works required to be undertaken at the workplace. 6. Mr Bikay Theodord Kusimweray ('Kusimweray') was a worker employed by Yelchan. 7. Kusimweray was engaged, or caused to be engaged, by the offender, as he was an employee of a subcontractor undertaking work in behalf of the offender. The offender could influence or direct Kusimweray's work as he was the employee of a subcontractor undertaking work on behalf of the offender. 8. Kusimweray was a worker for the purposes of s 7 of the Act. He commenced employment as a formwork labourer with Yelchan on 4 January 2016. 9. At the southern edge of levels 1 to 3 of the building under construction at the workplace between scaffold and the edge of the concrete slab were accessible penetrations measuring approximately 400 mm in width and 1000 mm in length ('the penetrations'). 10. On about 19 or 20 November 2015, Soni attended the workplace at the request of Charlie as Charlie wanted to support a balcony on the scaffold and required Soni's input. Whilst at the workplace and upon inspecting the construction, Soni observed that there were gaps between the scaffold and the building and a few internal handrails on the scaffold were missing on level 1 of the workplace. Soni requested Charlie to close the gaps. Soni reported this to Fitzgerald, and Fitzgerald advised him that the gaps were normal on building sites, and that he did not want any more hop ups as it would get in the way of the bricklayers. Fitzgerald further stated that Deicorp would not pay SHS for the extra work. 11. As a consequence of this discussion, Soni advised Charlie to provide double internal handrails to avoid fall hazard from the scaffold. Soni also stated that he advised Deicorp to provide temporary handrails on the slab to prevent fall hazard from the slab prior to leaving the workplace. 12. Following this discussion, Soni sent the following email to Fitzgerald on 20 November 2017: 'Dear Luke, As discussed on the site that I have noticed larger gaps between slab and scaffold at some places. From our discussion I also understand that these initial gaps are unavoidable due to planned brickwork and once the brickwork will start (approximately in two weeks' time) these gaps will become smaller. In current condition, on larger part of the existing scaffold the gap is within 225mm. Where the gap is larger I have advised scaffold leading hand Charlie to provide double internal handrail to avoid fall hazard from the scaffold (see attached photo). At the places of larger gap, we also recommend you to provide temporary hand rails on slab to prevent fall hazard from slab.' 1. A photograph of the gap was attached to the email. Fitzgerald did not respond to the email. Fitzgerald on leave in November 2015, and Elazi undertook foreman duties on Fitzgerald's behalf. 2. Importantly and unfortunately, the offender was not copied in on the email. 3. On 12 January 2016 there was no exclusion zone around the penetrations and access to areas in the vicinity of the penetrations was not restricted. No edge protection was in place on the concrete slab on level 3 in the vicinity of the penetration on this level nor was the penetration securely covered. 4. At some time on or prior to 12 January 2016, planks of wood were placed over the gap between the edge of concrete slab and the scaffold on level 3 of the premises. The plywood was not secured as at 12 January 2016. THE INCIDENT 1. On 12 January 2016 Kusimweray was at work at the workplace undertaking formwork duties in the vicinity of the penetrations on level 3. At the time of the incident he had worked at the workplace as a formwork labourer for approximately one week and a day. His duties include taking nails out of the timber formwork, stripping the timber formwork and cleaning formwork. 2. Whilst Kusimweray was working from the concrete slab stripping the southern edge of the building, he stepped onto an unsecured plywood board between the concrete slab and the scaffold. The plywood gave way and he fell between the scaffold and the slab from level 3 to level 1. He was conveyed to Royal Prince Alfred Hospital for emergency treatment. 3. As a result of the incident, Kusimweray sustained serious injuries which required surgical treatment. He was discharged from hospital on 22 January 2016. I have had regard to the Victim Impact Statement provided by Kusimweray and note that he has unfortunately suffered greatly. The accident and the injuries he has sustained have impacted him physically, emotionally and financially. SYSTEMS OF WORK BEFORE THE ACCIDENT 1. Rock Form's SWMS identified hazards associated with erecting and stripping formwork, one such hazard being fall from heights. Such hazard required the use of hop-ups of 700 mm, handrails and catch desks to be in place, and an exclusion zone. It identified that a fall from height was also a hazard when lifting formwork and plywood/timber which required that edge protection be erected with hand rails, and that these tasks should be done prior to the formworks being done on leading formwork edge. 2. Rock Form's Site Safety Plan also included a risk assessment for formworks which identified working at heights with inadequate edge protection as a hazard. Management and control of the hazards included the following: 1. Ensuring there was adequate strength in handrail and that there was a midrail; 2. Ensuring there were no gaps in the perimeter protection; 3. Providing catch scaffold; and 4. Penetration/s should be covered securely. 1. Rock Form did not ensure that the measures in its SWMS were in place at the premises, nor was Kusimweray trained in SWMS. Its site safety plan, SWMS, and risk assessment did not require regular inspection of the workplace. 2. Guidance was readily available to Rock Form in the WorkCover NSW Code of Practice and in the Work Health and Safety Regulation 2011, both of which identified the hazards and risk associated with the work that was being done, and recommendations as to how to manage or eliminate the risks. In December 2011 SafeWork Australia published a Code of Practice entitled 'Managing the Risk of Falls at Workplaces Code of Practice'. There is no evidence that the offender exercised due diligence by taking reasonable steps to ensure compliance with the Code of Practice. AFTER THE INCIDENT 1. After the incident the offender undertook a detailed review of its safe working practices and implemented the following: 1. A safety officer was retained three days per week between 13 January 2016 and 10 February 2017. Thereafter a full-time safety officer was retained; 2. A specialised role of onsite safety delegate was created and that delegate now reports to the safety officer; 3. The offender designed and manufactured mesh protection covers for implementation on work sites that have penetrations in the formwork areas. These covers are now implemented on all formwork sites with fall hazards within the offender's form work area. Prior History 1. The offender has not previously appeared before the courts on health and safety matters. Considerations 1. I have had regard to the objectives set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 for the purpose of sentencing. Objective Seriousness of the Offence 1. The duty of the offender requires that they ensure that the health and safety of workers as far as reasonably practicable. As the offender pleaded guilty, it has admitted that the measures to ensure safety would have been reasonably practicable. This duty is not delegable, and the offender cannot escape it's liability as a consequence of its contractual relations with other parties, as the offender had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks. 2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1998) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the time limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70]. 3. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] MSWSC 432 at [61]. 4. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively. 5. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 in the matter of Nash v Silver City Drilling (NSW) Pty Limited ; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96;93 NSWLR 338. His Honour Justice Basten at paragraph 34, under the heading 'Assessment of Risk' said: 'The sentencing judge commenced his consideration with the proposition that 'greater culpability attached to the failure to guard against an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including: (a) The potential consequences of the risk, which may be mild or catastrophic; (b) The availability of steps to lessen, minimise or remove the risk; and (c) Whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.' Further at paragraph 42 his Honour continued: 'The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon and overall evaluation of various factors, which may pull in different directions.' 1. My findings about the offender's level of culpability are based on the following: 1. The risk here was the risk of falling through an open penetration. Unfortunately it came home. The consequences were potentially catastrophic, and the worker was lucky to have survived. His injuries were serious and had a significant impact on him. 2. The nature of the risk was obvious, glaringly so. The measures that could have been taken to control or eliminate the risk were not difficult or expensive, and as such the offence is more objectively serious. The risks of falling from heights on building and construction sites are notorious. It is common sense that people working at height are at risk of falling down unless there is something that intervenes to prevent that occurring. 3. The offender should have undertaken an adequate inspection of the workplace before the work started so as to ensure that the workplace was safe and that the penetrations were secured and restricted. 4. The offender should have prohibited work from being conducted in areas where there were open and accessible penetrations until they were secured, or the area was restricted. 5. The measure to control the risk was simple – all the offender had to do was to conduct a proper inspection of the site. Had they done so, they would have discovered the risk and prevented workers from working there. 6. The offender should have provided information, instruction, training and induction about the site, the relevant safe work method statement applying to the site including matters pertaining to falls from height, and the presence of the penetrations at the site. There is no evidence that any of this was done. DETERRENCE 1. Based on matters deposed to in the affidavit of Thomas Kayrouz ('Kayrouz'), the sole director and secretary of Rock Form, I accept that the offender has shown contrition and remorse. He has accepted full responsibility for the accident. The offender has taken significant steps to ensure the future safety of its workers, and is committed to ensuring that such an accident does not happen again. 2. In imposing a penalty in relation to this offence, general deterrence must be provided for. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, however it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors. I am satisfied that the changes in management practices and there is evidence before me of those changes. 3. The approach to be adopted is set out in Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 [(2000)] 49 NSWLR 610 at 644 para [74]: 'Both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be some exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.' 1. The failure to inspect at all, resulting in the offender not noticing the void, is a significant departure from the impositions imposed by the legislation. Had the plywood cover been lifted up, the risk would have been obvious. It was not lifted up. Such a simple task could have prevented the incident altogether, and such an oversight led to the worker sustaining serious injuries. AGGRAVATING FACTORS 1. The injuries sustained by Kusimweray were significant and the sequelae were very serious. These are aggravating factors that must be taken into account. See ss 21A (2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). MITIGATING FACTORS 1. The offender pleaded guilty on the first day of what was to be a 10 day trial. It is entitled to some discount based on the utility of the plea, but noting that it came at almost the last minute, after witnesses had attended court to give evidence, the appropriate discount is 15%. 2. The offender has no antecedents and has demonstrated contrition and remorse. The likelihood of a repeated offence is small. COSTS 1. The offender as agreed to pay the prosecutor's costs and disbursements in the sum of $62,500.00. PENALTY 1. My orders are: 1. The offender is convicted. 2. The appropriate fine is $150,000.00 but that will be reduced by 15% to reflect a plea of guilty. 3. I impose a fine of $127,500.00. 4. I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. 5. I order the offender to pay the prosecutors costs as agreed in the sum of $62,500.00. ********** 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: 14 September 2018