Rice v Nikias Diamond Property Development Pty Ltd
[2019] ACTMC 30
•9 September 2019
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Rice v Nikias Diamond Property Development Pty Ltd |
Citation: | [2019] ACTMC 30 |
Hearing Date(s): | 19 August 2019 |
DecisionDate: | 9 September 2019 |
Before: | Acting Chief Magistrate Theakston |
Decision: | See [42]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – health and safety duty – failure to prevent risk of death and serious injury – manifestation of risk |
Legislation Cited: | Work Health and Safety Act 2011 (ACT) ss 19, 32 |
Cases Cited: | Attorney General (NSW) v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8 Comcare v Commonwealth of Australia [2007] FCA 662; 163 FCR 207 |
Parties: | Shan Rice (Informant) Nikias Diamond Property Development Pty Ltd (Defendant) |
Representation: | Counsel Ms S Beaumont (Informant) Mr I Neil SC (Defendant) Ms P Bindon (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) Clayton Utz (Defendant) | |
File Number(s): | CC 41519 of 2018 |
ACTING CHIEF MAGISTRATE THEAKSTON:
Background
The defendant is before the court having pleaded guilty to the following offence contrary to s 32 of the Work Health and Safety Act 2011 (ACT):
On 27 October 2016 in the Australian Capital Territory … being a person conducting a business or undertaking which had a health and safety duty; failed to comply with that duty and the failure exposed an individual to a risk of death or serious injury or illness.
That plea of guilty was entered on the seventh appearance, eight months after the first appearance and after negotiations between the parties. It did not follow any plea of not guilty or any other indication to the court that the matter would be contested. It could not be said that the plea was entered at an early stage, but it was entered nevertheless and without a hearing being contemplated. Accordingly I will discount the sentence by 20% compared to what I would have otherwise imposed.
Circumstances of the offence
The circumstances giving rise to this offence came to light following a tragic incident. What could have been a positive introduction to the building industry for a 16 year old school student, turned into a life changing event. I stop at this point to note that the offence before the court was complete with the exposure of an individual to risk, and did not require that risk to manifest into the incident and associated injuries.
The entities and construction site
In 2016 the defendant was the builder of a complex block of residential and retail units in Amaroo. The block involved four separate buildings, each with three levels, and with a total of 52 separate units. Mr Dimitri Stramarcos, a director of the defendant, was the construction manager for the Amaroo site. Mr Justin Huggett was the residential site manager for the defendant at the site.
The defendant contracted Feel Style Pty Ltd for the joinery work on the site. Feel Style was owned by Mr Damien Berry.
Feel Style in turn contracted BCC Building Pty Ltd to assist with that joinery work. BCC Building was owned and operated by Mr Dayne Christie. Mr Eathan Christie was an employed supervisor and Mr Brett Lawson an employee of BCC Building.
The voids
The design of unit 28 was similar to many of the other units. It included two sets of straight staircases, one above the other, joining the garage to level 1 and then level 1 to level 2. At the relevant times, the floors and framing were in place in unit 28 but the staircases were not. The resultant void extended from the floor of level 2 down approximately 6 metres to the concrete floor of the garage on the ground level. On level 2, the size of the void was approximately 3.4m x 1.0m.
The safe work method statements required the voids to be temporarily covered by aluminium planks with flooring screwed on top of the planks. That was not done for several of the voids on level 2 of building 4, including the one in unit 28. In unit 28 three sides of the void were bordered by at least a half wall that was not yet covered. That left a 1.0m side open without any barrier. It was Feel Style’s responsibility to cover the voids.
In early September, Mr Huggett became aware that the voids in blocks 1 and 2 were left uncovered. He spoke to Mr Berry about the issue and sent an email to Mr Berry confirming that conversation and requiring Feel Style put the temporary planks and flooring in place. It appears from the statement of facts that the voids in blocks 1 and 2 were covered by October.
Mr Huggett also knew at some point in time that the voids in block 4 were uncovered. He did not subsequently followed up with Feel Style to ensure that the temporary coverings were put in place. The voids in block 4 were left uncovered for approximately three days. It is unclear what, if any, work may have been done proximate to their location while they remained uncovered.
The exclusion zone
Both Mr Stramarcos and Mr Huggett gave evidence that at the time of the incident, the part of level 2 of building 4 that included unit 28 was within an ‘exclusion zone’. The zone was said to be bounded to a solid wall that split that level into two, and which could not be passed through. The remaining three sides were bounded by scaffolding. (I note that those three sides were elevated external walls of the building and could only be accessed by use of the same scaffolding). Both gave unchallenged evidence that the use of scaffolding to form a border to an exclusion zone was an industry standard. I note that a breach of the duty may still occur notwithstanding the adoption of an industry standard (see, for example: Attorney General (NSW) v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8).
Mr Huggett explained that the scaffolding formed the barrier by the presence of three horizontal scaffolding poles, between the scaffolding walkway and the building. Those poles appear to have formed a rudimentary fence. Mr Huggett explained, as I understand his evidence, that there were no ‘hop up bays’ that provided access to level 2. A photograph was put into evidence that depicted ‘hop up bays’ that later existed elsewhere. In particular I note that at each of those ‘hop up bays’ there was a break in the horizontal poles that would otherwise impede access, and in that case there was a step to assist access to the platform sitting at a higher level on the other side of the fence.
Mr Stramarcos could not give evidence about whether the exclusion zone was marked by signage. Mr Huggett maintained that it did have signage notwithstanding that signage was not visible in any of the photographs in evidence. He conceded that while there were a couple of warning signs marking the exclusion zone, he could have put up more. The signs said either ‘Danger’ or ‘No access’. There was no evidence that the existence of the exclusion zones were communicated to anyone in anyway other than a couple of signs as described above. Mr Huggett indicated that he had not discussed the exclusion zone with the students during a site induction or with BCC Building.
I accept Mr Stramarcos’ and Mr Huggett’s evidence they had some understanding between themselves that there was an exclusion zone for the relevant part of level 2 of building 4 at the relevant time. However, I find that any signage that may have been in place was simply inadequate to communicate the existence of that exclusion zone to anyone else. Further, as the issue of an exclusion zone is a mitigating factor, and the onus of proof therefore falls upon the defendant; in the absence of evidence that the existence of the exclusion zone was communicated effectively to others at the work site, I decline to find that it was so expressly communicated.
Kids assist program
In 2016 the ACT Government Education Directorate and the Masters Builders Association operated a collaborative program that involved high school students working for set periods during their school terms at either TAFE or on building sites, for the purpose that the students may obtain experience, and possibly later employment, in the construction industry. All student participants were required to complete their work health and safety construction induction (white card) training.
The defendant and its staff did not know that the students were part of the work experience program. Mr Huggett claimed that either Feel Style or BCC Building told him that the students were apprentices.
The incident
In October 2016 two students, both aged 16, commenced work under the program with BCC Building at the Amaroo site. At that stage the units had only been partially completed. The students were not initially inducted onto the site.
The students were instructed to move large and heavy wall sheeting from the elevated scaffolding up 600mm to the second storey of the building that also included stepping over a considerable gap between the scaffolding and the building; and across the floor of the building that including crossing a 3.4m x 1.0m void in the floor by using a narrow aluminium plank. The void was crossed using one foot on the plank and the other on the cement wall that formed the edge of the void. The void involved empty space down six metres to the concrete ground floor.
The following day the students continued working at the site. At some point that day, Mr Huggett was conducting a routine inspection of the site and came across the two students. They were located on level 2 of building 4, but in the half of that floor that was not part of the exclusion zone and not proximate to any uncovered void.
Mr Hugget asked if they had been inducted, and when he discovered they had not, he escorted them to the meals shed where he conducted the induction. The facts are not clear about what the induction included other than requiring the students to read and sign the safe work method statements. The facts indicate they took five minutes to read those documents, in circumstances where it would ordinarily take a person 10 – 15 minutes to read the same. As indicated above, the existence or significance of the exclusion zone was not discussed. The students were allowed to make their own way back to the level 2.
Mr Lawson directed one of the students, Mr Tarek Hijazi, to fix fasteners to a wall. That required the use of a step ladder. Mr Hijazi placed the ladder adjacent to the stairwell void in unit 28 in such a way that the feet of the ladder were 300mm from the void. Mr Lawson was working above Mr Hijazi when the former realised that the latter was in the wrong unit. Mr Lawson yelled ‘you are in the wrong fucking unit’. Mr Hijazi descended the ladder and stepped straight into the void. He fell the 6m down and landed on the concrete floor. He sustained serious spinal injuries to his neck and back, and was taken to hospital where he underwent surgery.
Victim impact
It has now been almost three years since the incident. The medical reports and Mr Hijazi’s Victim Impact Statement describe a painful, slow and only partial recovery. Mr Hijazi has undergone much treatment, suffers significant and ongoing pain, has trouble sleeping, has put on considerable weight, has to sleep in the lounge room of his parents’ home, can only attend CIT part-time, can no longer pursue a career in carpentry and has become isolated from his friends. Clearly the incident has had a devastating impact upon his quality of life.
The subjective circumstances of the defendant
The defendant is a family owned company operating in Canberra and established in 2004. It provides construction and project management services for new and existing buildings, both private and commercial in nature. It has four salaried directors, receiving $180,000 per annum, and 14 employees. In the financial year ending June 2018 it returned a net profit of approximately $565,000 after a turnover in excess of $22m.
It has no criminal history. It has supported the local building industry, including supporting young tradesmen and apprentices, and has made considerable contributions to charities by donations, sponsorship and performing construction work free of charge.
The defendant had in place, at the relevant time, an extensive work, health and safety management system. Those systems included an agreement that Feel Style would temporarily cover the stairwell voids and invoice the defendant for the costs.
The defendant has assisted WorkSafe ACT with its investigations and made early admissions that facilitated the administration of justice. It has demonstrated an acceptance of responsibility and taken tangible steps to improve its work health and safety systems. Those systems expressly address risks of falls from height and the induction of inexperienced workers onto site, that now will be done in the presence of the host employer and defendant’s site supervisor.
The defendant has not contacted Mr Hijazi since the incident, because initially it understood that WorkSafe ACT had told it not to contact him. More recently attempts to contact Mr Hijazi have not been successful.
Consideration
It needs to be observed that these proceedings are not an inquiry into what went wrong on 27 October 2016 at the Amaroo building site that lead to Mr Hijazi falling and suffering a serious injury. There are a number of concerning features about this case. The Education Directorate’s placement of 16 year old school students on a complex building site with numerous entities and numerous hazards, notwithstanding the provision of the basic ‘white card’ training. The lack of notification by some, or at least a lack of awareness by others, that such students were on the site. The apparent absence of any special arrangements for such students. The failure of Feel Style to promptly cover the voids as agreed with the defendant. The failure of BCC Building to apparently appreciate the significance of such voids or insist that work not be carried out near such voids. And of course the failure of the defendant to monitor and therefore ensure that such voids were covered, notwithstanding in the minds of its officers that an exclusion zone had been established. This is clearly a case where a number of professionals let the students down by failing to prevent them from being exposed to the very serious risk presented by the uncovered voids.
However, these proceedings are not about considering the relative failings of the various entities involved. Rather, it is about sentencing the defendant for the particular breach of its duty under s 19 of the Work Health and Safety Act 2011 (ACT) of not putting workers and others at risk of death or serious injury or illness. Accordingly, the evidence put before me has not fully addressed each failing by each entity. Had there been a death, a coroner would have had the task of doing just that. However and under the current law, neither a coroner nor this Court has that function.
During submissions I was reminded of the decision of Comcare v Commonwealth of Australia [2007] FCA 662; 163 FCR 207 where Madgwick J, at [120], summarised the considerations relevant to sentencing in NSW occupational health and safety prosecutions:
120 Decisions under the cognate New South Wales Act refer to the following considerations among others:
(i)the penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety;
(ii)it is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable;
(iii)the offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer;
(iv)the gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety;
(v)a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision;
(vi)general deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act;
(vii)employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety;
(viii)regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration;
(ix)the neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst case category;
(x)the objective seriousness of the offence, without more may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties.
[emphasis added]
As indicated above, the offence was completed upon the exposure of the students to the risk of death or serious harm or illness. I have taken into account the manifestation of that risk in this case as an aggravating circumstance (see Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [57]), an indication about the seriousness of what was a possible consequence of that risk and therefore, how serious the risk was. Clearly, and consistent with what actually happened in this case, the risk of falling 6m onto a concrete floor involved the risk of a very serious injury. It also involved the risk of death.
The maximum penalty for this offence is $1.5m. This offence is obviously designed to capture a very broad range of circumstances in relation to both the seriousness of the breach and the nature of the entity involved.
The void in this case patently created a very serious risk. It was serious due to the nature of the possible consequences, and the likelihood that a worker may inadvertently fall through the void. In relation to the latter element, I take judicial notice about the complex and dynamic nature of multi-level building sites. They are not simple and stable environments. There is a lot to perceive and navigate around in the context of getting a job done. Falling through an unmarked and uncovered void was certainly not a remote possibility, but rather a real possibility. I note that the defendant concedes that this risk is notorious.
Further, the voids could have very easily been covered had the defendant, through its officers, insisted that occur. The defendant had a range of simple measures available to it to persuade Feel Style to take such action.
I note the defendant’s submission that the exclusion zone was breached by BCC Building. The creation by the defendant of an exclusion zone in the circumstances where at best it was poorly marked, and with no other evidence of communication, provides little to no mitigation. In fact the very apparatus used to mark the boundary was the same apparatus that provided access to area with the dangerous voids. Further, such scaffolding even as an industry standard to mark such boundaries, the existence of which on the evidence I must accept, was simply inadequate in the absence of more. That is the case particularly here where the scaffold platform extended well past and to the other side of the horizontal bars that was said to form the boundary. The presence of that extended platform, without adequate signage or information, invited its use and the breaching of the barrier notwithstanding the existence of any industry standard.
I accept that the contribution to the risk by another entity may mitigate a penalty. That may be so particularly where the circumstances are such as to limit a defendant’s ability manage or control the risk. However, in this case the defendant was aware that the voids in building 4 remained uncovered and took no action to rectify that deficiency or put in place additional controls to otherwise manage the risk.
I note that the voids were left open for approximately three days, and that the defendant did not appreciate that BCC Building, including the students, would be working adjacent to them. I also note that the defendant was not aware that work experience students would be on the work site.
When all of the above is considered, including the defendant knowingly tolerating the foreseeable risk, but for a relatively short period of time, and in circumstances where it could have taken steps to address the risk but assumed that workers would not be near the voids, I assess the offending at slightly below the mid-range of objective seriousness.
It is clear from the evidence that the defendant is otherwise of good character, had planned to conduct the site safely, and that the contravention in this case arose due to the failure for a relatively short period to enforce its existing requirements.
The response to the incident by the defendant convinces me that specific deterrence need not feature as highly as it otherwise might. However, general deterrence looms large. Penalties must be set at a level that demand the attention of businesses, and undertakes and influences them to make safety a priority in the work place. This is particularly the case in industries where work place injuries are common and where managers may be seduced to give less thought to safety concerns due to the demands and complexities of the tasks at hand.
The penalty I will impose is designed to denounce the conduct of the defendant, make it accountable for its actions and to recognise the harm done to Mr Hijazi.
Orders
In relation to CC18/41519 – failure to comply with duty and exposure of an individual to risk of death or serious injury or illness, I record a conviction and impose a fine of $180,000.
But for the plea of guilty, that fine would have been $225,000. I will hear the parties further in relation to time to pay.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Chief Magistrate Theakston Associate: Priyanka Koci Date: 9 September 2019 |
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