SafeWork NSW v DSF Constructions Pty Ltd

[2016] NSWDC 183

District Court

New South Wales

Medium Neutral Citation:	SafeWork NSW v DSF Constructions Pty Ltd [2016] NSWDC 183
Hearing dates:	15 July 2016
Date of orders:	24 August 2016
Decision date:	24 August 2016
Jurisdiction:	Criminal
Before:	KEARNS DCJ
Decision:	The defendant is convicted and fined the sum of $225,000 with a moiety to the Prosecutor. The defendant is to pay the Prosecutor’s costs as agreed or assessed.
Catchwords:	Work Health and Safety Act 2011 ss 19(1), 32 – plea of guilty – unsecured skylight fell 11 metres onto worker – fatal injuries – defendant contracted by head contractor to design, manufacture, deliver and install structural steel works in accordance with engineering specifications and instructions from the head contractor – no barrier, sign or other measure in place to delineate exclusion zone at time of incident – foreseeability of risk – foreseeability of consequences of risk – measures readily available to reduce or eliminate risk – mid-range objective seriousness – relative culpability compared to others and whether this may be taken into account – high risk industry – specific and general deterrence – guilty plea entered at first available opportunity – genuine remorse and contrition – no prior convictions – cooperation with regulator – improved safety systems – use of victim impact statements
Legislation Cited:	Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996
Cases Cited:	R v Turnbull [2016] NSWSC 847
Category:	Sentence
Parties:	SafeWork New South Wales (prosecutor) DSF Constructions Pty Ltd (defendant)
Representation:	Counsel: Mr J Agius SC with Mr B Docking, instructed by SafeWork NSW, appeared for the prosecutor Mr P Rooney, instructed by Kreisson Legal, appeared for the defendant
File Number(s):	2015/84860

Judgment

THE CHARGE AND THE PLEA

1. DSF Constructions Pty Limited is charged that on 13 April 2013, contrary to s 32 of the Work Health and Safety Act 2011 (the Act), it breached a duty imposed on it by s 19(1). DSF has pleaded guilty.

SOME PRELIMINARY MATTERS

2. This matter was listed for hearing together with proceedings against Ceerose Pty Ltd. Mr Rooney, who appeared for DSF, and Mr Ginters who appeared for Ceerose, both sought that the proceedings be heard sequentially rather than concurrently. Mr Agius QC, who appeared with Mr Docking, for the Prosecutor in both matters did not oppose this. The matters were heard sequentially and I have just delivered my sentence and reasons on sentence in the matter of Ceerose.

3. Though both cases had statements of agreed facts, they were not in all respects consistent. My deliberations in each case were confined to the statement of agreed facts pertinent to that case and such other evidence as was tendered in each case.

4. In this case, the Prosecutor relied on the following evidence:

1. four victim impact statements (Exhibit PX 1);

2. a tender bundle (Exhibit PX 2);

3. a statement of Mr Agusi (Exhibit PX 3);

4. an email of 6 February 2013 together with some engineering drawings (Exhibit PX 4);

5. an email of 28 February 2013, together with some structural steel room framing shop drawings (PX 5).

5. The defendant read an affidavit of Mr Agusi, sworn on 13 July 2016 and he gave evidence.

THE LEGISLATION

6. Section 19(1) of the Act provides:

A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)   workers engaged, or caused to be engaged by the person, and

(b)   workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

7. Section 32 relevantly provides:

A person commits a Category 2 offence if:

1. the person has a health and safety duty, and

2. the person fails to comply with that duty, and

3. the failure exposes an individual to a risk of death or serious injury or illness.

THE FACTS

8. Ceerose is a company that undertakes building and construction work.

9. On 13 April 2013, it was operating as the principal contractor at a site being 43-45 Australia Street, Camperdown. On the site was a three storey rectangular brick building. It was being refurbished for use as student accommodation. The work involved some demolition, some rebuilding and some maintenance of heritage aspects of the building. The internal structure and roof were being demolished and refurbished. A new skylight was being erected and installed within the centre of the building.

10. The skylight structure is described in an agreed statement of facts (ASOF) (Exhibit PX 2, Tab 1 [7]) in terms similar to that set out in my reasons in the Ceerose matter.

11. On 13 April 2013, the date of the incident, vertical and horizontal beams were in place. Crane work was required to lift and place three skylight frames onto erected beams. Crane work was undertaken by Coopers Heavy Industries Pty Limited (Coopers) which had been subcontracted to Ceerose to provide and operate cranes at the site. The particular task of lifting the skylight frames was beyond the capacity of Coopers’ cranes and PC Cranes was subcontracted for that task.

12. Working on the site were three men who were employees of 1 Stop Workforce Pty Limited. 1 Stop was a labour hire company which recruited and allocated workers to others. The three men were Mr Westover, Mr Barbasch-Bouchard and Mr Mathieu Linares-Lopez.

13. The skylight frames started to be lifted at about 8.00am. This was in the central atrium of the building. They were lifted towards roof height for placement and installation there. The skylight frames were lifted into place by PC Cranes.

14. The defendant used an elevated work platform (EWP) to undertake the steel work fixing. The EWP was in close proximity to some parts of the steel work structure undergoing installation and fixing.

15. Mr Agusi was in the EWP. He was confirming the final placement of the frames. He did not then observe any workers within the exclusion zone which was in place during the steelwork erection operations. Sometime between 9.30am and 10.30am, the lifting and placing operation for the skylight frames was completed. PC Cranes left the site.

16. When the process of lifting and placing the skylights was completed, Mr Agusi had a conversation with Mr Dylan Cooper and Mr Zeater regarding the second stage, level 2 works. It was decided those works were to be commenced on the following Monday. As the steel work operations for the day had concluded, Mr Cooper advised Mr Agusi that he would pack up his cranes and finish for the day. He commenced to pack up. Mr Agusi attended the level 2 area to check some measurements in preparation for the following Monday.

17. At some time thereafter, Coopers began some lifting works. They were not part of the steel work erection, and Mr Agusi was not aware as to the purpose of or reason for or the direction given for those lifting works. They were being undertaken by Mr Graham Cooper. During that process, the 1 Stop workers were allowed into what had been the exclusion zone. The defendant was not responsible for those lifting operations and had no control over the 1 Stop workers. Mr Agusi was not in a position to observe the activities of those workers. They were allowed by Coopers to return and work under the lifting operations. There was no identified exclusion zone as prescribed by the Standard at the time of the incident. Such a zone would have prevented Mr Linares-Lopez from being in the fall zone of the skylight.

18. The 1 Stop workers were assisting in the removal of temporary fencing. Mr Linares-Lopez was located on the ground level. The other two were passing the materials down to him from the first floor level. The three skylight frames were in position at roof level about 11 metres above Mr Linares-Lopez. The crane or its load struck the steel frame. The skylight directly above Mr Linares-Lopez fell. It struck Mr Linares-Lopez causing him fatal injuries.

19. The skylight had been placed into position, but had not been bolted, welded or otherwise permanently fixed. The skylight was about 7 metres x 2.4 metres. It weighed about one tonne. It consisted of a number of steel members.

20. Mr Agusi was cross-examined on some earlier statements he had made and whether in those statements he had asserted that the skylight had been secured or bolted in place before the incident. I did not detect any inconsistency, especially considering Mr Agusi did not have the same facility with English as did Mr Agius who was cross-examining him. They did not always have the same meaning for the same term. Also the circumstances in which the statements were made are not known but almost certainly they were not made in the same way evidence is elicited in Court.

21. On 12 April 2013, the day before the incident, the engineer attended the site. The engineer inspected the steel structure and was informed that it was proposed to lift the skylights into place the following day. Mr Agusi showed the engineer the connection between the steel structure and the existing building and reminded him that he was awaiting a connection detail. At this point, I note that in his affidavit, Mr Agusi states that when the engineer was informed that Mr Agusi was awaiting the connection detail, the engineer responded “yeah, yeah, I’m working on it”. When the engineer was informed that it was proposed to lift the skylights into place the following day, Mr Agusi states in his affidavit that the engineer gave the go-ahead.

22. Mr Agius submitted that I should reject that evidence in the affidavit. I do not accept that submission. The submission is based on a document (Exhibit PX 4) said to be the engineering detail for the connection in question. Mr Agius and Mr Agusi were at issue about the meaning of that document in the course of cross-examination of Mr Agusi. It seems to me to be a document requiring expertise to explain it. On the basis of that document alone, I am not prepared to reject that evidence of Mr Agusi. Further, it was available to the Prosecutor to call the engineer to deal with this, but he was not called.

23. Yet further, Mr Zeater was present during these discussions and he was not called.

24. Yet further, I consider that the cross-examination on this point and the submission are not compatible with [32] and [33] of the ASOF. Those paragraphs are as follows:

32.   On 12 April 2013 an engineer from M&G Consulting attended the site to inspect the progress of the steel structure erection. The Defendant showed the engineer the connection between the steel structure and the existing building and reminded the engineer that the Defendant was awaiting a connection detail from M&G before the connection could be made.

33.   After inspecting the steel structure the engineer was advised that it was proposed to lift the skylights into place the following day. The engineer did not raise any concerns or issue any directions, and specifically did not direct the connection of the steel structure to the existing building at the roof level, or otherwise, and did not direct the installation of temporary guys or bracing.

25. Mr Agius may have been proceeding in his cross-examination on the basis of an agreed fact in the Ceerose matter. That was that the skylight frames had not been secured in place in accordance with engineering specifications. In the Ceerose case, Ceerose and the prosecutor agreed that there were engineering specifications for securing the skylight frames in place. That was not agreed in these proceedings and I have now found that the evidence in these proceedings does not support it. I note at this point that this highlights one of the problems with the defendant’s submission which I deal with later to the effect that its culpability should be considered to be lower than that of others. It is not a realistic submission when parties in different proceedings present to the Court agreed facts that are inconsistent.

26. What is clear is that Mr Agusi knew the steelwork structure had to be stable (T5.50). He agreed that he knew the skylight had to be bolted in place (T6.03). He later moved from that position and said the skylights were not required to be bolted and that according to “engineering” it was to be site welded (T6.20). That is presumably a reference to clause 3.3.8 of “the WORKS” under the contract between Ceerose and DSF which provided that DSF had allowed for the skylight frame to be welded together on site. The same clause provided that DSF had allowed for the skylight frames to be bolted onto the roof beams.

27. It is at this point that Mr Agusi relied on the engineer’s advice that it was in order to place the skylights in position without bolting. He was asked the following question (T20.03):

Why did you install the skylight knowing, as you say, that you didn't have sufficient information to be able to properly secure the beams?  Why did you do that?;

and gave the following answer:

Install the skylight.  If I knew there was a risk, I would not install it.  I would jeopardise my life and to workers around.

28. That answer does not sit well with earlier evidence that he knew there was a crane operating. He knew it could bump into the structure and then the following question and answer (T19.08):

Q.  And you knew that if that happened, there was a risk that the structure that was resting on the wooden beam would fall?

A.  That's ‑ that's the part of the design.

29. I am satisfied on the evidence that Mr Agusi relied on the engineer in setting the skylights into position. I am satisfied beyond reasonable doubt that, despite this, he knew there was a risk that if the crane bumped the structure, the skylights could be dislodged and fall.

30. The defendant’s safe work method statement (SWMS) identified a hazard of “Unstable structure” in relation to “structure steel works”. The statement specified a control being, “Rigger to inspect structure to ensure it is braced and safe, check that bolts are in place and tensioned to specific torques at the end of each day.” (Exhibit PX 2, Tab 6, p4)

31. The defendant’s SWMS provided for an exclusion zone (ASOF [55], PX 2, Tab 1). While this was an agreed fact, it was not a control specified in relation to the risk of “Unstable structure”. It was a control in three other contexts. One was “Establishing work area around and leading to structural steel roof and level 2 frame location” (Exhibit PX 2, Tab 6, p2). Another was “Erection of steel using a boom lift (EWP)” (Exhibit PX 2, Tab 6, p3). The third was “Bolting structural steel elements” (Exhibit PX 2, Tab 6, p4).

32. The exclusion zone was in place and monitored by the defendant during the steel work erection operations up to the time that the skylights were lifted into position at roof level. When the steel work erection operations for the day had ceased and the defendant had left that area, Coopers undertook some lifting operations. The exclusion zone then ceased to be in place. At the time of the incident, there was no barrier, sign or other measure in place to prevent workers from being where they were at the time the skylight frame fell. There were no directions, procedures or prohibitions to prevent them from working in the fall zone of the skylight frame.

33. Coopers had submitted an SWMS to Ceerose and it provided that Coopers would be responsible for implementing an exclusion zone in and around lifting operations. Its SWMS identified the risk of the crane or its load coming to contact with the steel structure as a consequence of the tight area in which the items were to be lifted. Coopers specified that to alleviate the risk it would conduct all lifting operations using tag lines and dogmen.

34. The defendant did not supervise the 1 Stop employees, but its processes in erecting the steel structures directly influenced their activities.

35. On 13 April 2013, before works commenced, Ceerose directed its workers (the 1 Stop workers) to work in other parts of the building and not in the vicinity of the cranes while the lifting process of the skylights was in operation.

36. At the time of the incident, not all of the primary vertical steel columns were fully secured in that they did not all have a minimum of four bolts at their base. There was no evidence, however, that this had any relevance to the occurrence of the incident or the existence of the risk.

37. 1 Stop did not require Ceerose to implement and enforce an exclusion zone. 1 Stop did not prohibit its workers from working under or about frame work. 1 Stop did not provide training or instruction to its workers on the dangers of working under roofing structures that were not fully installed and safely affixed. 1 Stop provided its workers with induction documents which included general information about safety. 1 Stop did not ensure that Ceerose provided proper supervision of workers.

THE SENTENCING PROCESS

38. I bear in mind several matters. I bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act 1999. I bear in mind the purposes of the Work Health and Safety Legislation, in particular ensuring the safety, health and welfare of workers and others on workplace premises. I bear in mind any relevant aggravating and mitigating factors, including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act 1999 so far as any of those may be relevant.

39. I start my analysis with a consideration of the gravity of the offence. This may be determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk.

40. Foreseeability is clear in this instance. The evidence of Mr Agusi establishes that though he relied on the engineer in deciding to place the skylight frames in position, he was nevertheless aware of the risk of their falling should the structure be struck by a crane and he was aware of the presence of a working crane in a tight area.

41. Documentary material also supports foreseeability. The defendant’s SWMS referred to “Unstable structure” with a safety control specified. This might have been intended for the duration of the process of installing the structure, but the point is that the SWMS identified unstable structure as a hazard and it would remain a hazard without the remedial measures suggested being undertaken.

42. Foreseeability can also be gleaned from Australian Standard AS3828-1998 “Guidelines for the Erection of Building Steelwork”, especially clauses 2.1, 2.6, 3.2.2 (Exhibit PX 2, Tab 5).

43. Foreseeability of consequences of the risk coming home is clear and it includes potential fatality.

44. Measures available to eliminate or minimise the risk are set out in the Amended Summons, in paragraph 8, as follows.

a.   Having in place and following, during the erection stage and until that stage was completed, an adequate safe work method statement which in accordance with Australian Standard AS 3828-1998 Guidelines for the erection of building steelwork” specifically provided for:

1.   The requirement of temporary bracing of the structural steelwork;

2.   The stability requirements for all components of the structure;

3.   The stability of partially erected structures when left unattended;

4.   Verification of the effectiveness of temporary guys, bracing and support at the end of the workday or during temporary cessations of work;

b.   Ensuring the preventing or minimising of the potential for excessive movement, sway and/or collapse of all parts of the structural steelwork as well as the structure as a whole at the site by:

1.   The use of temporary guys or bracing; and/or

2.   Tying the structure in at roof level by temporary means; and/or

3.   Making the permanent connections between the structure at the timber beam level and the existing building;

c.   Taking steps, or checking that steps were taken, to ensure the footings supporting the four vertical columns of the steelwork structure were adequately secured by bolting the column base plate onto the column footing to prevent or minimise excessive movement or sway of the structural steelwork on which the skylight frames were placed;

45. As to step (c), there was evidence as to inadequate bolting. The evidence did not disclose what causative effect, if any, as to the presence of the risk or its consequences that inadequate bolting had. The other measures are measures that were readily available to DSF.

46. DSF seeks to have its culpability limited to reference to what it submits is the higher culpability of others. I adopt and include here what I have said in Ceerose at [35], [36] and [40], though noting the agreed facts in the cases are not identical.

47. The objective seriousness of the offence in this case is added to by the fact that it is one that occurred in a high risk industry. That calls for careful vigilance to ensure safety obligations are complied with.

48. I consider this offence to fall in the mid-range of objective seriousness.

49. Other matters need to be considered. I adopt here what I have said as to general deterrence in the Ceerose matter.

50. Specific deterrence also needs to be taken into account. It is to a relatively minor extent, especially considering the defendant’s remedial safety measures following the incident and the unlikelihood of its re-offending.

51. I turn to matters in mitigation.

52. The defendant pleaded guilty at the first available opportunity.

53. The defendant has expressed remorse and contrition and its position in this regard is quite evident from the material at [55] to [63] and also the last paragraph, numbered 60, of the affidavit of Mr Agusi. I need not set out the detail. The effect of this incident on Mr Agusi has been profound and I am satisfied as to the genuineness of his, and accordingly the defendant’s, expressions of contrition.

54. The defendant has co-operated with SafeWork in the investigation and prosecution in relation to this incident.

55. The defendant has no prior convictions. It was registered by Mr Agusi in 2009. The lack of prior convictions is to be taken in the context of the defendant operating in a high risk industry. Further, Mr Agusi, prior to this incident, had not been involved in any industrial accident or seen any worker receive any serious injury on a work site. His affidavit does not disclose how long he has worked in the industry, although it is evident it must have been for some time before 2009 when he registered the company.

56. The defendant has improved its safety systems since this incident. Detail of that is set out in Mr Agusi’s affidavit from [66] to [75] and need not be detailed here. I simply note that one feature of the improvement process is that he has re-evaluated the method of preparing SWMSs. He now creates an individual and specific one for each job and pays specific attention to individual categories of hazards for each job and methods to reduce those hazards. By way of example, attached to his affidavit was an SWMS with Rapid Constructions. He has undertaken an amount of work with Rapid which is a large construction company employing a full time safety officer. Rapid is stringent in its compliance with work safety and the defendant’s SWMS has been approved.

57. I consider the defendant’s guilty plea entitles it to a discount of 25% on what would otherwise be the appropriate penalty in this case.

58. The defendant is a small, family company. It has two shareholders only, being Mr Agusi and his wife. Its only employee is Mr Agusi. Its earnings are determined by the amount of work he is able to do. It was submitted that even a small fine will have significant ramifications for the defendant. To the extent that this was a submission that I should not fine the defendant even a small amount, I am against it. Anything other than a substantial fine would constitute a failure to acknowledge the seriousness of this offence and the extent of the defendant’s culpability. Further, the submission fails for want of any evidence as to the defendant’s financial position showing the extent to which a fine would constitute a hardship on the defendant.

59. Victim impact statements were read and admitted into evidence. I adopt here what I said in Ceerose.

60. As with Ceerose, I think the circumstances of this case require a substantial fine. Again, not to impose one would not give due weight to the objective seriousness of the offence constituted by the foreseeable risk, the foreseeability of the consequences in the event of the risk materialising, the readily available measures to eliminate the risk and deterrence.

61. The principal matter that has troubled me considerably is the reliance that the defendant had on the engineer with the go-ahead to put the skylight frames in place. However, to a large extent, that reliance dwindles by reason of the fact that the defendant was aware that the skylight frames had not been secured. It was aware of the presence of a crane operating near them in a tight situation and was aware that should they be knocked they were liable to fall.

62. In all the circumstances I think an appropriate fine, after discounting by 25% for the guilty plea, is the sum of $225,000.

ORDERS

63. The defendant is convicted and fined the sum of $225,000 with a moiety to the Prosecutor.

64. The defendant is to pay the Prosecutor’s costs as agreed or assessed.

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Decision last updated: 24 August 2016