District Court New South Wales Medium Neutral Citation: SafeWork NSW v Sydney Hoist and Scaffolding Pty Ltd [2019] NSWDC 442 Hearing dates: 23 August 2019 Date of orders: 29 August 2019 Decision date: 29 August 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: In relation to proceedings 2016/57563: (1) The offender is convicted. (2) The appropriate fine is $300,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $225,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order the offender to pay the prosecutor's costs. In relation to proceedings 2016/57600: (1) Summons withdrawn and dismissed. (2) No order as to costs. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty COSTS - prosecution costs OTHER – Scaffolding – insufficient ties and bracing to prevent instability and risk of collapse – no documented plan detailing bracing of the scaffold and dismantling of the scaffold – scaffold structure not reviewed by competent engineer – incomplete scaffolding – missing ties – missing bracing – missing handrails Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2017 (NSW) Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Australian Standard AS/NZS 1576.1:2010 Scaffolding Part 1: General Requirements Australian Standard AS/NZS 4576.1995 Guidelines for scaffolding Erecting, altering and dismantling scaffold Part 1 Prefabricated steel modular scaffolding Industry Safety Standard - Erecting, altering and dismantling scaffold Part 1 Prefabricated steel modular scaffolding Category: Sentence Parties: SafeWork NSW (Prosecutor) Sydney Hoist and Scaffolding Pty Ltd (Defendant) Representation: Counsel: D Jordan (Prosecutor) M Johnston SC (Defendant) Solicitors: SafeWork NSW (Prosecutor) K & L Gates (Defendant) File Number(s): 2016/575632016/57600 Judgment Introduction 1. In proceedings 2016/57563 Sydney Hoist and Scaffolding Pty Ltd (the offender) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Johnson Penerata, Anthony Celea, William Barden, Robert John Cundy and Brinsley Willcocks to a risk of death or serious injury contrary to s 32 of the Act. 2. The maximum penalty for the offence is a fine of $1,500,000. 3. In proceedings 2016/57600 the offender was charged with a breach of a health and safety duty under s 19(2) of the Act, and it was alleged that the failure to comply with that duty exposed Jane King to a risk of death or serious injury contrary to s 32 of the Act. Ms King was the driver of a car passing by the worksite where the accident happened. 4. On 15 April 2019 leave was granted to file an Amended Summons in proceedings 2016/57563, and a Form 1 in those proceedings. The Form 1 listed the charge, relating to the exposure of Ms King to risk, originally brought in proceedings 2016/57600. The intention of the parties is that those proceedings will be dismissed with no order as to costs, and the offence in relation to Ms King will be taken into account pursuant to the Form 1, in dealing with proceedings 2016/57563. Background 1. The parties presented an Agreed Statement of Facts and this material is summarised in paras 6-94 below. 2. At all material times Toplace Pty Ltd (ACN 135 918 491) (Toplace) was a registered corporation with its registered address at Unit 2301, 20 Porter Street, Meadowbank in the State of New South Wales. 3. At all material times Toplace conducted a business or undertaking which provided building and project management services. 4. In or around September 2013 Toplace commenced a building project located at 182-196 O'Riordan Street, Mascot in the State of New South Wales (the site). The project included commercial space at ground level and residential apartments above (the building) to a height of 14 floors. 5. The site was bordered by O'Riordan Street to the West, King Street to the North and High Street to the South. Residential properties framed the Eastern side of the site. 6. Toplace, as Principal Contractor, was responsible for coordination of, and direction of, the work done by all workers on the site. Toplace had a primary and non-delegable duty to ensure that workers and other persons were not placed at risk of death or serious injury arising out of the construction of the building. 7. As at 25 February 2014 there was a Kwik stage 'system' scaffold that was adjacent and connected to what was known as the Southern Tower facing O'Riordan Street (the scaffold). The total height of the building on its Western side, facing O'Riordan Street, was approximately 44 metres. The scaffold was comprised of components from two different, although compatible, scaffolding systems being the Techstage Scaffolding system and the Ackrowskaf Scaffolding system. For the purposes of these facts, the side of the southern tower scaffold facing O'Riordan Street will be called "the O'Riordan Street scaffold face". 8. At all material times Sydney Hoist and Scaffolding Pty Ltd (ACN 117 792 140) (SHS) was a registered corporation with its registered address at Level 1, 54 Neridah Street, Chatswood in the State of New South Wales. 9. At all material times SHS conducted a business or undertaking which provided scaffold and associated labour for maintaining the scaffold whilst in use. 10. In or about May 2013 SHS entered into an arrangement with Toplace to provide scaffold and labour to erect, maintain, alter and dismantle the scaffold for the building and a 2-tonne man and materials hoist (the hoist) for a period of 35 weeks. The value of that arrangement was $404,885 exclusive of GST. 11. At all material times Sydney Wide Scaffolding Pty Ltd (SWS) was a registered corporation with its registered address at Level 1, 54 Neridah Street, Chatswood in the State of New South Wales. At all material times, SWS provided labour to SHS. 12. At all material times Sydney Hoist Rentals Pty Ltd (SHR) was a registered corporation with its registered address at Level 1, 54 Neridah Street, Chatswood in the State of New South Wales. SHR provided, erected, maintained, altered and dismantled the hoist which was included in the arrangement between SHS and Toplace. 13. At all material times Aleksandar Manojiovic was the sole director of SHS, SWS and SHR. SHS, SWS and SHR also share premises, workers and facilities. Toplace 1. At all material times, Toplace employed or engaged the following people in the following capacities: * Jean Mouawad, project manager (as a contractor through Innovative Builders Pty Ltd); * Bashar Marabani, site foreman; * Charbel Kazzi, finisher foreman (as a contractor through Kazicorp Pty Ltd). 1. As at 25 February 2014 Mr Marabani had 15 years experience as a site manager and had previously been an onsite civil engineer. He had been employed by Toplace since 2008. Mr Marabani reported to Mr Mouawad. As site manager, Mr Marabani was responsible for monitoring employees and contractors' compliance with safe work method (controls) and site safety rules. He was also responsible for ensuring that all employees and subcontractors had read and understood their relevant Safe Work Method Statements (SWMS) prior to commencing work at the site. He was also responsible for conducting regular reviews of SWMS whilst work was taking place at the site to ensure that employees and subcontractors were adhering to the risk controls identified in the SWMS. SHS 1. At all material times SHS employed or engaged the following people in the following capacities: * Sasa Manojlovic, Operations Manager; * Patrick Paaka, Leading Hand Scaffolder and Supervisor; * Thompson Tamu, Leading Hand Scaffolder; * Johnson Penerata, Scaffolder (engaged through labour hire company Cornerstone Services Australia Pty Ltd (Cornerstone)); * Alastair Salisbury, Scaffolder (engaged through Cornerstone); and * Brinsley Willcocks, Truck driver. SWS 1. At all material times SWS engaged (through labour hire company Workforce Recruitment and Labour Hire Services Pty Ltd (Workforce)) Anthony Celea as a scaffolder. SHR 1. At all material times SHR employed or engaged the following people in the following capacities: * Robert Cundy, Leading Hand Rigger; and * William Barden, Scaffolder (engaged through Workforce). 1. As at 25 February 2014 Mr Paaka had approximately 30 years experience as a scaffolder and held an advanced scaffolders ticket. Mr Paaka's duties within SHS were to train and induct workers, ensure workers worked to the Safe Work Method Statement (SWMS), complete handover certificates (HOC) and scaffold safety checklists (SSCL) and supervise workers on site. Mr Paaka reported to either Mr Sasa Manojiovic or Aleksandar Manojiovic. Mr Paaka attended the site monthly, as directed by SHS management or as otherwise required. 2. As at 25 February 2014 Mr Tamu had over 20 years experience as a scaffolder and held a NSW high risk work licence as a basic scaffolder. He had worked both in Australia and overseas. He commenced work with SHS in May 2013. Mr Tamu reported to Mr Paaka or directly to Sasa Manojiovic. 3. As at 25 February 2014 Mr Cundy held a high risk work licence and was an advanced rigger and scaffolder. He had been working with scaffolds since 1999. He had also been installing and dismantling hoists since 1999. As leading hand rigger his responsibilities were to supervise and manage the installation or dismantling of hoists. Mr Cundy reported to Sasa Manojiovic. 4. Mr Barden obtained his basic scaffolding licence in around May 2013. As at 25 February 2014 he had less than one year of scaffolding experience. On 24 and 25 February 2014 he was undergoing training on the hoist under the supervision of Mr Cundy. 5. Mr Salisbury had only been on the site on 24 and 25 February 2014. While he had obtained his high risk work licence as a basic scaffolder some six to eight months previously, he had no prior practical experience with scaffolding on a construction site. 6. As at 25 February 2014 Mr Penerata held a high risk work licence as a basic scaffolder. He had approximately six years previous experience in scaffolding. He did not work every day at the site, but only worked there occasionally. 7. As at 25 February 2014 Mr Celea held a high risk work licence as a basic scaffolder. He had approximately five years previous experience in scaffolding. He did not work every day at the site, but only worked there occasionally. 8. Mr Willcocks commenced as a labourer with SHS, but as at 25 February 2014 was a truck driver. He had no prior experience in construction but had been working for SHS for two to three years. 9. SHS maintained a constant presence at the site between November 2013 and February 2014. Mr Tamu was usually the leading hand scaffolder at the site for SHS. If he was not at the site, Mr Paaka would attend. However, every day during the two and a half to three months before 25 February 2014, Mr Tamu was working continuously at the site. 10. As a result of instructions given by SHS or alternatively in accordance with SHS policy, Mr Paaka only attended the site, on average, only once a month. Particularly in the days leading up to the collapse of the scaffold on 25 February 2014 when there were alterations to the scaffolding surrounding the South Tower, the appointed supervisor, and signatory of the HOCs and person responsible for inspecting the scaffold, Mr Paaka, was not in a position to perform those duties as a result of directions by SHS management. Scaffold Terminology 1. A "standard" refers to one of the upright components of a scaffold. 2. A "ledger" refers to a horizontal component that connects the standards. 3. Scaffolds can be tied into the facade of a building in a variety of ways. Scaffold ties consist of a connection to the structure and a tube connecting to the scaffold, usually using scaffold couplers as the connector at the scaffold end and sometimes at the structure end. 4. Horizontal ties are the most common form of tie. They can connect to both standards. Among the most common types of horizontal scaffold ties are: * Box ties * Double lip or U ties * Column ties 1. A raker tie is a connection between the building and the inner standard of the scaffold using a scaffold tube at an angle to the vertical, instead of the more traditional horizontal tie. Raker ties connect to the building slab using an angle bracket with swivel scaffold coupler and connect to the scaffold standard using a swivel coupler. Raker ties only connect to one standard, but are sometimes necessary to be used where it is not reasonably practicable to install a horizontal tie. 2. A fascia tie is a bracket secured by bolts to the building structure and ties back using a coupler and tube to the two standards of the scaffold. 3. A tube and clip tie is an H tie or similar, a tube butted either side of a fixed structure, for example, a wall. 4. A transom is a horizontal member of the scaffold that is used to connect adjacent standards, normally in the smaller dimension of the bay. 5. A cross brace is placed diagonally from standard to standard, to increase rigidity. Events leading up to the incident 1. On or about 19 December 2013 the erection of the scaffold was complete. SHS provided a Handover Certificate (HOC) and a Scaffold Safety Checklist (SSCL) for Levels 1 to 14 to Toplace which verified that the scaffold was safe and fit for use. The HOC was signed by Mr Paaka and verified by Mr Tamu on behalf of SHS. 2. The hoist was located adjacent to the scaffold loading bays. At least one of the hoist ties was attached to one of the scaffold standards. 3. Bowing in the northern and eastern elevations of the scaffold had been noticed on 9 January 2014 and had been attended to by SHS on 10 January 2014. Mr Paaka had discussed the bowing with Mr Marabani. The bowing in the scaffold indicated instability in the scaffold then surrounding the southern tower. 4. SHS attended to repairs on the scaffold at some time prior to 31 January 2014 and an invoice was rendered to Toplace for that work on that date. Part of those repairs included 'scaffold ties being removed giving problems to open gates'. The gates referred to are the hoist gates. This finding indicated that the scaffold had shifted relative to the hoist as a result of unauthorised removal of ties. Mr Tamu subsequently reinstalled ties to this area. 5. Mr Tamu raised the issue of the unauthorised removal of ties and scaffolding components with the Toplace site Management (being Mr Marabani and Mr Kazzi) on a number of occasions. This was to the effect that other trades were removing ties and other parts of the scaffold at the site without requesting assistance from SHS. Mr Tamu later told SafeWork NSW that other trades were removing handrails, hop ups, working platforms, transoms that had been included for safety reasons, guardrails, lap boards, safety mesh, ties, bracing and using scaffold planks as work benches. 6. On at least one occasion on 21 January 2014 Toplace held a Toolbox Talk/Safety Committee Meeting advising other trades on site that they needed to request relocation of scaffold ties through either SHS or Toplace management on site. The minutes of the Tool Box Talk/Safety Committee Meeting of 21 January 2014 recorded that "Scaffold on job site must not be tampered with. If need be altered, please consult Toplace site management and Sydney Hoist". However, despite Mr Tamu raising his concerns with Toplace, scaffold ties continued to be removed by persons other than those authorised by SHS to remove the ties. 7. In the week prior to 24 February 2014 the Toplace site Management requested Mr Tamu to relocate two fascia ties on Levels 9 and 10 of the scaffold, and two fascia ties and one raker tie on Level 12 so that renderers could patch where the original ties were and in preparation for the dismantling of the scaffold. 8. In the days prior to the collapse, scaffolding on the two sides adjacent to the southern tower was dismantled, leaving the O'Riordan Street scaffold face. There was no documented plan for Mr Tamu to follow in relation to the tie spacing and bracing for the O'Riordan Street scaffold face. 9. The removal of the scaffolding on the two sides adjacent to the O'Riordan Street scaffold face removed support from the O'Riordan Street scaffold face and created instability in it. This instability would have been avoided by the placement of further ties from the southern scaffold into the building structure, in conjunction with cross bracing being placed at either end of the O'Riordan Street scaffold face. Neither of these methods was employed on this occasion. 10. At some time just prior to 24 February 2014 two levels had been stripped from the O'Riordan Street scaffold face, leaving it comprising of 12 levels. The last three bays of the southern scaffold were due to be stripped the following day. The scaffold had been in that configuration for approximately four to seven days. 11. During the afternoon of 24 February 2014 Mr Salisbury was asked by Mr Tamu to go with one of the Toplace foremen. Mr Salisbury went with the foreman up to Level 12 of the O'Riordan Street scaffold face, where he was instructed to remove a tie which was fixed to the wall with an L-bracket. Mr Salisbury removed the tie and replaced it with a tube and clip tie over the balustrade. At the foreman's request Mr Salisbury repeated that action on two further levels below, removing and replacing a total of three ties. Mr Salisbury advised Mr Tamu, in the presence of the foreman, of what he had done. 12. At some time between 21 February and 24 February 2014 Mr Tamu checked the scaffold and found it was "shaky" in the dogleg of the Western elevation, on the King Street side, which had been stripped the previous day. This indicated that the scaffold was unstable. Mr Tamu told SafeWork NSW that he installed additional raker ties through the windows. He also informed SafeWork NSW that the scaffold was shaky "the day before" the collapse when the scaffolders started to dismantle parts of the western elevation. The Incident 1. On 25 February 2014 Mr Celea and Mr Penerata were working at the site on scaffolding under the supervision of Mr Tamu. Mr Barden was working at the site under the supervision of Mr Cundy dismantling the hoist. 2. Shortly before 1pm Mr Celea and Mr Penerata were asked by the Toplace site Management to relocate some wall ties on Level 7. They accessed the scaffold and went up to Level 7 where they found Mr Tamu. Mr Tamu then left to locate some dynabolts for Mr Celea and Mr Penerata, while they waited on Level 7 for him to return. The dynabolts were to be used to secure the scaffold. 3. Mr Willcocks had arrived at the site between 10.00am and 10.30am in a truck which had a Hiab crane mounted on it. Mr Willcocks parked his truck next to the hoist and spoke with Mr Cundy. 4. Mr Cundy and Mr Barden had spent the morning decommissioning the hoist. Mr Cundy and Mr Barden removed the hoist ties from levels 2, 4 and 6 on the O'Riordan Street scaffold face. They then took all the towers off the hoist in one operation and laid them on the ground. They were in the process of loading the components of the towers onto the truck when the scaffolding failed. 5. After the arrival of Mr Willcocks, Mr Cundy and Mr Barden proceeded to dismantle the hoist and assist Mr Willcocks with placing the components onto the truck. Mr Cundy guided the hoist while Mr Willocks operated the crane. 6. Although it was denied by Mr Cundy, Mr Barden told SafeWork NSW that some hoist ties were tied to the plan bracing that was used on the loading bays of the scaffold and also to the scaffold itself. In addition, one hoist tie was left in place as it was also tied to the scaffold standard. 7. The removal of the adjacent scaffold structures on other sides of the building, combined with the lack of ties and bracing, on the remaining O'Riordan Street scaffold face meant that it was unstable and liable to collapse. 8. At approximately 1.07pm the scaffold collapsed. The collapse was generally in a downwards direction, although parts of the scaffold structure fell: * Outside the scaffold area across the working area on the site where workers had been working * Over the boundary fence of the site, causing part of the fence to collapse * Across the adjacent public footpath on O'Riordan St, bringing down a section of Ausgrid power lines and causing a telegraph pole to lean * Onto the lane of O'Riordan Street closest to the site. Personnel 1. Mr Tamu was not on the scaffold at the time of the collapse. 2. Mr Barden, Mr Willcocks and Mr Cundy were all in the vicinity of the truck, having finished loading the hoist approximately 5 minutes earlier. As the scaffolding fell they all took evasive action and were not injured. Mr Cundy was on the back of the truck next to the hoist. When he heard the noise of the scaffold falling around him, he dived under the truck for cover. Mr Barden was walking around the front corner of the truck on the O'Riordan Street side. Mr Willcocks was standing between the scaffold and the back of the truck. When the components of the scaffold began to fall, Mr Barden ran north towards King Street and Mr Willcocks ran south towards High Street. 3. Mr Penerata and Mr Celea were on Level 7 of the scaffold. At the moment the scaffold collapsed, the bays on which Mr Penerata and Mr Celea were standing suddenly dropped around a metre. Three or four seconds later, Mr Penerata and Mr Celea fell two floors to Level 5. Approximately five or six seconds after that, the scaffold began shaking and Mr Penerata dropped a further four floors on the scaffold, ending up at the height of Level 2, on a pile of the collapsed scaffold. 4. Mr Celea managed to grab onto a piece of concrete on the outside of one of the apartment balcony railings. He was then hit by a piece of scaffold and fell onto the balcony below. Mr Celea was initially pinned by another piece of scaffold, which then continued to fall. Mr Celea then got up and jumped the handrail of the Balcony. He smashed a window in an apartment to get into the building and to safety. 5. A painter who was also on the scaffold at the time of the collapse was not able to be identified during the SafeWork NSW investigation of the incident. He was observed by a number of workers on the site to ride the scaffold down and by Mr Penerata to jump from the scaffold. 6. Mr Penerata sustained a small cut to his right knee which required stitches. He subsequently developed Post Traumatic Stress Disorder (PTSD) as a result of the incident. 7. Mr Celea sustained soft tissue injuries to his chest, lower back and multiple grazes. Mr Celea also developed a reluctance to work at height. He returned within a few weeks to employment that does not require him to work at heights, but he now earns less. 8. Mr Barden sustained a minor injury to his shoulder. He remained off work for two weeks, returning on light duties initially and then returned to scaffolding duties. Since May 2014 he has been unable to work on a scaffold due to suffering panic attacks. He has been subsequently diagnosed with PTSD and depression. 9. The collapsed scaffold components fell over the site boundary fence, over the adjacent footpath and into lane 1 of O'Riordan Street. The falling scaffold components brought down powerlines suspended on telegraph poles in O'Riordan Street. The downed power lines caused a further risk, which manifested when a member of the public, Ms Jane King, was driving south along O'Riordan Street on her way to work at the time of the collapse. Ms King saw the power lines on the road, but had no option but to keep driving due to the traffic conditions. The power lines came into contact with her car, scratching several of the car's panels. Ms King told SafeWork NSW that she was very shaken up by the incident and was unable to go to work that day. Guidance Material Design and construction of scaffold 1. Australian Standard AS/NZS 4576.1995 Guidelines for scaffolding (the Guideline Standard) states: "As a general rule, scaffolds should be erected and dismantled according to the supplier's documented procedures. A scaffold that is not designed in accordance with the supplier's information may need a modified erection and dismantling procedure specified by a competent person." Ties 1. SafeWork NSW (formerly WorkCover NSW) Guidance document Industry Safety Standard - Erecting, altering and dismantling scaffold Part 1 Prefabricated steel modular scaffolding (subsequently referred to as the SafeWork Guidance document) provides guidance for simple scaffolds that meet certain design limitations and are therefore suitable for erection without detailed design by a structural engineer. However, the document states that any scaffold over 20 metres in height requires engineering design. 2. The SafeWork Guidance document specifies ties should be placed at 4 metres vertical spacing on the end standards and 8 metres vertical spacing on other standards, staggered to give 4 metres spacing on rows of ties. For scaffolds above 14 metres, but below 20 metres, there should be an additional row of ties 2 metres from the base. 3. Since the scaffold involved in this incident is over 20 metres, the SafeWork Guidance document does not apply. However, industry practice would be to ensure sufficient ties were maintained rather than fewer ties. 4. Australian Standard AS/NZS 1576.1:2010 Scaffolding Part 1: General Requirements does not prescribe tie spacing but relevantly states at C2.8.5: "Ties are critical to the stability of the scaffold and the location of ties can vary considerably from one project to another. When considering scaffold tie patterns the following should be taken into account: (a) A high scaffold may result in large self (dead) and imposed (live) loads acting vertically, in addition to imposed live loads horizontally on the lower standard of the installation, and consequently may require additional ties at the lower levels to provide extra lateral restraint to the standards. Horizontal imposed (live) loads can result from wind load on containment sheeting. (b) The top perimeter of a building may induce high wind actions and additional ties may be required to stabilize the scaffold in this area. (c) ... Some scaffold ties may not be able to be installed in the required positions. The scaffold installation designer should then ensure that each tie that is to be installed is able to sustain the additional load or it may be necessary to specify additional ties to compensate." 1. The Guideline Standard in relation to tying scaffolds states: "Where no specific information is supplied, use the relevant requirements of AS 1576.3 Supplement 1 for tying of tube-and-coupler scaffolds. Drilled-in anchors, such as friction and chemical anchors, may only be used to secure ties where it is not practicable to use other methods. Where drilled-in anchors are used... a competent person must assess the suitability of the supporting material." The Standard then gives a diagrammatic explanation of box, double-lip or U, and column ties. Inspections 1. Clause 225(3) of the Work Health and Safety Regulation 2017 (NSW) states that a person with management or control of a scaffold must ensure that the scaffold and its supporting structure are inspected by a competent person: (a) … (b) before the use of the scaffold is resumed after repairs; and (c) at least every 30 days. Bracing 1. The Guideline Standard states that modular scaffolds should be constructed with a lift of ledgers and transoms connected at the lowest fabricated connection points of the standards. Ledgers should form a continuous line along the full length of the scaffold. Ledgers should also be connected at each lift to each standard at the same levels as the transoms. The Guideline Standard also provides that there should be face bracing every third bay and heel to toe (transverse or diagonal) bracing at the end of the bays with no return. After the dismantling of the other elevations (north, south and east) in the days prior to 25 February 2014, the scaffold can be described as consisting of "bays with no return". Cause of the Collapse 1. Mr Chris Turner, State Inspector Engineering, SafeWork NSW provided a report into the cause of the collapse. In Mr Turner's opinion, the collapse was caused by a number of factors including: * The scaffold having insufficient ties; * The use of mainly raker ties instead of other forms of tie; * The scaffold being insufficiently braced at its ends. 1. In relation to the ties that were in place shortly before the collapse, Mr Turner concluded SHS did not place sufficient ties in the scaffold facade such that the scaffold would not become unstable during the dismantling phase. In relation to bracing, Mr Turner found that there was no evidence of bracing, end or face, in the scaffold. The only bracing identified was face bracing in one of the low bays to the south end and in the northern-most bay, which was only mid-height (around Level 8). Any truss transoms in place in the scaffold did not contribute as much, as compared to specifically installed bracing, to its stability. However, there were truss transoms in place in the loading bay on every floor. SHS Systems of Work before the Incident 1. Prior to and at the time of the incident SHS had in place a specific HSEQ Management Plan for conducting the works at the site. The Management plan underpinned the manner in which SHS approached its safety obligations. 2. Besides the Management Plan, there was a Safe Work Method Statement (SWMS) specifically for the Mascot site, a process of handover certificates, a scaffold safety checklist, and hire agreement worksheet all of which had appropriate references to safety matters and were capable of identifying the risk which emerged in this incident. 3. The leading hand and scaffolding workers regularly attended Toolbox meetings at the Mascot site. 4. The SHS site specific SWMS identified the risk posed by non-authorised alterations being made to scaffold and the need for regular maintenance checks to be done. 5. The SWMS stated under the heading "Maintenance and Servicing Checks for Scaffolding" that checks were to be done "Weekly to standing scaffolds" by a scaffolder. 6. There were two controls identified in the SHS SWMS in respect of the hazard "Scaffold altered by non-certified scaffolder". First, only scaffolding over 4 metres in height could be altered by a certified scaffolder. Secondly, other trades were to be made aware of the alterations via the safety committee or tool box talks. Under the SWMS, the responsibility for those controls lay with the Toplace site manager and the SHS scaffolding leading hand. 7. The SHS contract for the scaffold provided to Toplace noted that structural alterations to the scaffold were only to be made by SHS employees. Further the SHS hire agreement worksheets, countersigned by a representative of Toplace, drew attention to alterations which were to be undertaken by SHS employees only. 8. Mr Tamu was the SHS Leading hand at the site. Mr Tamu confirmed in his record of interview with SafeWork that he had received information, instruction and training from SHS and through external sources organised by SHS, in order to undertake his duties. There were a number of unauthorised alterations made to the scaffold, which Mr Tamu was aware of. Mr Tamu had raised the issue with Toplace's representatives and the matter had been the subject of a Toolbox Talk on 21 January 2014. 9. Upon instability being observed in the scaffold, SHS did not issue, and did not advise Toplace to issue, a direction to workers to cease work and clear the site until the scaffold could be inspected by a qualified person and declared safe. 10. SHS did not ensure that the scaffold had sufficient ties and bracing to prevent it from being unstable and at risk of collapse. 11. The scaffold was not the subject of a documented plan which detailed the bracing of the scaffold and the process by which the scaffold would be dismantled. SHS did not put in place a means by which any person qualified to design the scaffold could communicate to SHS workers how the scaffold was to be tied and braced during its dismantling. 12. SHS did not request a competent engineer to review a scaffolding plan or approved scaffold drawings before the scaffolding was constructed and after any significant alteration of the scaffold, or to review the plan to disassemble the scaffold in a manner which would leave the O'Riordan Street scaffold face remaining. Further, SHS did not have the scaffolding structure reviewed by a competent engineer. Action taken following the Incident 1. On 28 February 2014 SafeWork NSW issued two improvement notices to Toplace in respect of two other scaffolds at the site: (a) the scaffolding around the southern facade of the northern tower; and (b) the scaffolding around the southern tower The risk stated on the notices was the risk to workers posed by unsafe scaffolding including incomplete scaffolding, missing ties, missing bracing, missing handrails and inadequate access. The notices required a licensed scaffolder to either inspect and rectify each of the scaffolds and provide a Handover Certificate which indicated any amendments made by the scaffolder, or to dismantle the scaffolds. Both improvement notices were complied with on 13 March 2014 by: (a) in the case of the southern tower, the dismantling of the scaffold; and (b) in the case of the northern tower, the provision of a Handover Certificate. 2. After the incident SHS embarked upon a program to improve its safety performance. A particular focus was centred upon the requirement to undertake inductions, do daily Toolbox talks and refresher training for Leading Hands and workers on the importance of understanding and signing onto the respective SWMS. Leading hands were also given refresher training in handover certificates and safety checklists, and in supervising site inspections. After the incident SHS also provided copies of its SWMS for scaffolding to its contractors prior to working at site. The offender's evidence 1. The offender tendered the affidavit of Alana Houliston affirmed on 20 August 2019. Ms Houliston is the Manager, Work Health and Safety of the offender. She has held that position since 3 October 2017. Ms Houliston was therefore not involved in the business of the offender at the time of the incident. Her affidavit was 18 pages long together with 190 pages of annexures. 2. Large parts of the affidavit were a word soup of buzz words and management-speak: "passionate leadership and effective communication"; "safety fabric"; "mature and robust"; "learnings"; "going forward"; "challenging beliefs to further drive improvements"; "genuine and accountable WHS leadership"; "resilient"; "vision"; "utilising a greater amount of competent resources"; "safety culture maturity assessment"; "global best practices"; "engaging our people at a personal level"; "embarked on an evolutionary process"; "genuine belief"; "holistic management of safety"; "integrating risk management processes into the fabric of our business". George Orwell described this kind of language as being tacked together like a prefabricated hen house. Affidavit evidence put forward on sentence in work health and safety matters is most useful when the deponent states in clear and unequivocal terms what went wrong, why it happened, and what has been done to fix the problem. 3. As I indicated to senior counsel for the offender during the hearing, I found difficulty in understanding a large part of the affidavit. Ms Houliston set out the improvements in the safety system which have occurred since the incident. Much of the evidence she gave was technical and detailed. Fortunately, senior counsel for the offender provided a very useful summary (and translation) of the affidavit in paras 34-48 of his written submissions (MFI 2). 4. The affidavit of Ms Houliston covers the following matters: 1. The present form of the documented safety system of the offender; 2. The review, amendment and improvement of the work health and safety system since the incident; 3. The additional professionals engaged since the incident; 4. The integration of applied psychology to improve safety; 5. The risk management procedure that has been developed since the incident; 6. The active monitoring and auditing of the safety system, including inspections during dismantling of scaffolding; 7. The steps taken with builders who are misusing scaffolding or engaging in any unsafe practice in relation to scaffolding; 8. The satisfactory performance of the offender with subsequent scaffolding, in the light of a construction industry blitz being conducted by SafeWork NSW, focused on scaffold safety. 1. The offender also tendered the affidavit of Mr Alex Manojlovic, the Managing Director of the offender. He confirmed the matters covered by the affidavit of Ms Houliston. His affidavit referred to: 1. The identification of risks that could lead to the failure or collapse of a scaffold structure during the dismantling process, or partial dismantling process; 2. The verification of competency in relation to the installation, alteration, extension or dismantling of the scaffold system; 3. The role of inspections as part of the ongoing safety programme. 1. Both the affidavit of Mr Manojlovic and the affidavit of Ms Houliston recorded the regret of the offender for the incident, and the acceptance of responsibility in relation to the incident and the loss which it has caused. Mr Manojlovic made clear that he personally regretted the trauma caused. 2. I regard these expressions of regret and remorse as genuine, because they had been backed up by an extensive programme of improvement of the safety system of the offender, both generally, and specifically in relation to the dismantling of scaffolding. 3. However, the regret and remorse is somewhat belated. Mr Manojlovic did not go to hospital to check upon the workers injured in the accident. In fact, he did not even know of the serious psychiatric illness suffered by Mr Penerata, until he was given the Victim Impact Statement, prepared for the purpose of the sentence hearing. In case after case concerning industrial accidents, evidence has been given that the boss goes to the scene of the accident, and then goes straight to the hospital to check on the welfare of his workers. There was obviously no follow-up on the condition of Mr Penerata, who had just fallen seven floors on the scaffold. Consideration 1. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. Objective seriousness of the offence 1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15]. 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 [1988] HCA 67; (1988) 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 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 as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 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] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively. 5. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment. 6. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Act 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. 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 attaches to the failure to guard against an event the occurrence of which is probable rather than 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." 1. 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 an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs." 1. At paragraph 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken." 1. My findings about the offender's level of culpability are based upon the following: 1. The risk of death or serious injury flowing from the offender's breach was extremely high; 2. The risk manifested itself in the collapse of the scaffold. Three workers were on the scaffold and fell with it. Three other workers were at the base of the scaffold, and had to dive or run for their lives; 3. Further, there was a risk of death or serious injury to passers-by, such as Ms King. This was a risk not just from falling scaffolding parts, but also from electrical cables which were brought down in the incident; 4. Problems with the scaffold were apparent to the offender well prior to its collapse. It was noted that there was instability and bowing in the scaffolding, which should have sounded a warning to the offender; 5. The offender knew that structural members of the scaffold were being removed by workers in other trades, and that this would lead to risks to safety; 6. There was no documented plan for the offender's employees to follow in relation to the O'Riordan Street scaffold face; 7. The removal of the scaffolding on the two sides adjacent to O'Riordan Street removed support from the O'Riordan Street scaffold face and created further instability in it; 8. While no serious physical injuries were occasioned, a minor miracle considering that two of the workers rode the scaffold seven storeys down to the ground, the victim Mr Penerata has suffered post-traumatic stress disorder of a most serious kind. This is dealt with further below in relation to his Victim Impact Statement; 9. The photographs behind Tab 6 in the Agreed Sentence Tender Bundle (PX 1), taken from O'Riordan Street, show that so much material came down that the debris was still stacked two storeys high. The scene outside the building site could have been one of absolute carnage, if those underneath the scaffold could not have taken the evasive action which they did; 10. There was publicly available material, in the form of the Guidance Material referred to above, which if followed, would have eliminated the risk of a scaffold collapse; 1. I find that the offender's level of culpability is in the high range. Victim Impact Statement 1. Mr Johnson Penerata was employed at the site as a scaffolder. He was working on the scaffolding on the seventh floor. He heard a loud bang which resulted in the scaffolding shaking and dropping. He tried to get off the scaffold onto the building but did not make it. The scaffold dropped again falling two floors. It rested there for a few seconds. His workmate was able to jump off the scaffold onto the building, but he was further away. The scaffold collapsed and he rode it all the way to the ground. He remembers being so scared that he was about to die. 2. The Victim Impact Statement refers to him being in shock, and trying to get home from the hospital, having lost his wallet during the incident. He, his wife and his children were all extremely upset when he arrived home. He was grateful to be alive. He said that the accident continues to haunt him. He has suffered from depression after the accident but found that speaking to psychologists only made him feel worse. He became suicidal and suffered from nightmares. Mr Penerata descended into drugs to cope with his mental state. His marriage was placed under severe strain. He became very angry after the accident, and this frightened his young children, who had never seen him like that. He developed a fear of heights and was unsuccessful in attempting to go back to work. He gave up socialising with friends and playing music. He went back to his family in New Zealand to deal with his drug addiction. Since returning to Australia he has been doing better and has been clean. He still has frequent flashbacks of the accident. He said that he will forever live with the guilt arising from what he put his family through. Form 1 Additional Charge 1. As previously recited, the charge in relation to putting the passer-by Ms King at risk was dealt with by a Form 1. 2. While the court is sentencing for the offence particularised in the Amended Summons, it must take into account the matters on the Form 1 for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process, being specific deterrence and retribution – Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146. 3. In that guideline judgment the Chief Justice said that the focus throughout must be on sentencing for the primary offence. It will rarely be appropriate for the sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences – at [43]-[44]. Deterrence 1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180]. 2. The penalty must reflect the need for specific deterrence. The offender is still conducting a business. It is a significant supplier of scaffolding. It is engaged in a potentially high risk industry. Aggravating factors 1. The injury, emotional harm, loss or damage caused to Mr Penerata by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. Mitigating factors 1. The offender has no record of previous convictions: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999. 2. The offender is otherwise of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the incident demonstrate this. The offender has been in business for approximately 12 years. It has not come under notice in the five years since the collapse. 3. The offender is unlikely to re-offend: s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999. 4. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken positive steps to guard against the risk of an incident such as this ever happening again. The offender has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred. 5. The offender has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to the victims was caused by its actions. 6. The offender entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give the offender a 25% discount for an early plea, as conceded by the prosecutor. 7. The offender gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offender co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion. Capacity to pay a fine 1. I am required to have regard to s 6 of the Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence. 2. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996." 1. There was no submission about capacity to pay, so this issue does not arise. Costs 1. The parties have agreed to an order that the offender is to pay the prosecutor's costs. Penalty 1. My orders are: In relation to proceedings 2016/57563: 1. The offender is convicted. 2. The appropriate fine is $300,000 but that will be reduced by 25% to reflect the plea of guilty. 3. Order the offender to pay a fine of $225,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. Order the offender to pay the prosecutor's costs. In relation to proceedings 2016/57600: 1. Summons withdrawn and dismissed. 2. No order as to costs. ********** 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: 29 August 2019