SafeWork NSW v Hadcon Constructions Pty Ltd

[2020] NSWDC 316

District Court

New South Wales

Medium Neutral Citation:	SafeWork NSW v Hadcon Constructions Pty Ltd [2020] NSWDC 316
Hearing dates:	4 June 2020
Date of orders:	19 June 2020
Decision date:	19 June 2020
Jurisdiction:	Criminal
Before:	Strathdee, DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine for the defendant would be $120,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) I accordingly order the defendant to pay a fine of $90,000.00. (4) 50% of the fine imposed is to be paid to the prosecutor. (5) The defendant is to pay the prosecutor’s costs as agreed or assessed.
Catchwords:	CRIMINAL LAW- prosecution- work health and safety- duty of persons undertaking a business – risk of death or serious injury SENTENCE – objective seriousness- mitigating factors-aggravating factors- plea of guilty – discount of 25% because of the utility of the plea -general deterrence-specific deterrence- appropriate penalty-remorse - contrition COSTS – prosecution costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW)
Cases Cited:	Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) NSWLR 338 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Kirk v Industrial Commission of New South Wales [2010] HCA 1 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 Orbit Drilling v The Queen [2012] VSCA 82 R v Cage [2006] NSWCCA 304 R v Miria [2009] NSWCCA 68 SafeWork NSW v Emu Group Pty Limited [2019] NSWDC 537 SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 SafeWork NSW v Orbit Formwork Pty Limited [2019] NSWDC 685 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
Texts Cited:	1995 Guidelines for Scaffolding Australian Standard 2359: Powered Industrial Trucks (2013) General Guide for Scaffolds and Scaffolding Work in July 2014 Guide to Scaffold Inspection and Maintenance” dated July 2014 SafeWork NSW brief guide ‘Toolbox Talk: Take Forklifting Safety Seriously’ SafeWork NSW Code of Practice ‘How to Manage Work, Health and Safety Risks’ (December 2011) SafeWork NSW Code of Practice ‘Managing the Risks of Plant in the Workplace’ (July 2014) SafeWork NSW’s Code of Practice Managing the Risk of Falls at Workplaces WorkCover Safety Alert ‘Working with or around Mobile Plant’
Category:	Sentence
Parties:	SafeWork New South Wales (Prosecutor) Hadcon Constructions Pty Ltd (Defendant)
Representation:	Counsel: Mr N Read appeared for the Prosecutor Mr M Cahill appeared for the Defendant Solicitors: SafeWork NSW Legal Services (Prosecutor) Bill Kritharas, Sparke Helmore (Defendant)
File Number(s):	2018/00188693
Publication restriction:	None

Judgment

1. On 20 April 2020, Hadcon Constructions Pty Ltd (‘the defendant’) pleaded guilty to an offence contrary to section 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’) by failing to comply with the health and safety duty imposed upon it by section 19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the defendant’s business or undertaking and in doing so exposed workers to a risk of death or serious injury.

2. This offence carries the maximum penalty of $1,500,000.00.

3. The contravention arises from an incident on 20 June 2017 at the defendant’s worksite located at 22-26 Anne Street, Lidcombe, NSW (‘the worksite’).

4. The prosecutor tendered an Agreed Statement of Facts and an Agreed Tender Bundle which forms the basis of the background set out below.

BACKGROUND

5. The defendant is a corporation conducting a business or undertaking involving the provision of building and construction services. Mr Robert Haddad (‘Mr Haddad’) is the sole director of the defendant.

6. In and before 2017, the defendant was the principal contractor of a construction site for a six-storey residential apartment block of 29 flats and a basement car park situated at the worksite. As the principal contractor, the defendant had management and control of the site and was ultimately responsible for ensuring the safety of workers at the site.

7. The defendant engaged Mr Michael Tannous (‘Mr Tannous’) as the site manager. Mr Tannous commenced working with the defendant in September 2016. Mr Tannous worked at the site daily and was responsible for implementing the defendant’s work health and safety system. He was required to undertake safety inspections, to ensure that trade workers adopted safe work practices, and to ensure that trade workers were complying with Safe Work Method Statements (‘SWMS’) and any instructions issued to them. Mr Tannous was the only worker employed by the defendant who worked at the site on a full-time basis.

8. Solid Scaffold Pty Limited (ACN 609 200 428) (‘Solid’) is a corporation conducting a business or undertaking involving the provision of scaffolding services. The defendant engaged Solid to erect and dismantle scaffolding at the site.

9. Masterpiece Rendering Services Pty Limited (ACN 614 074 878) (‘Masterpiece’) is a corporation conducting a business or undertaking involving the provision of painting and rendering services. The defendant engaged Masterpiece to undertake all rendering and painting of the building at the site.

10. Tiger Construction Group Pty Limited (ACN 618 626 270) (‘Tiger’) is a corporation that conducted a business or undertaking involving the provision of rendering services. Mr Mohammad Ibrahim Alizada (‘Mr Alizada’), the deceased worker, was the sole director of Tiger and undertook work for the company. Masterpiece engaged Tiger to assist with the rendering work at the site. Tiger supplied a number of workers including Mr Alizada to undertake the work. Mr Alizada commenced working on the site on or around 24 May 2017.

THE SCAFFOLDING

11. On or around 8 September 2016, Solid provided a quote to the defendant for the supply, erection and removal of scaffolding at the site. The scaffolding was to be erected around the exterior of the building and inside the lift shaft. From mid-January 2017, Solid erected scaffolding at the site. The perimeter scaffolding was erected progressively as the building was constructed. When completed, the perimeter scaffolding comprised approximately 55 working bays surrounding six floors of the building, and the uppermost working platform was approximately 16 metres from the ground.

12. The scaffolding had mid and top rails, hop-ups, internal handrails and ledges on the leading edges. Spreader bars (or tie bars) were installed on the edge of hop-ups to prevent the end planks from displacement or falling during ordinary use.

13. In or about March 2017, the rendering and painting work commenced at the site.

14. Since at least March 2017, the defendant identified that workers were making alterations to the scaffolding. Alteration of the scaffolding was necessary from time to time for the workers to render and paint all external faces of the building, though this was only to be undertaken by the workers of the scaffolding contractor, Solid.

THE INCIDENT

15. On 20 June 2017, Mr Alizada commenced work at the site at approximately 7:00am. He took a bucket of render to the northern side of Level 4 of the scaffolding to commence rendering work on the building.

16. The scaffolding on the northern side of Level 4 comprised two decks. The upper deck was situated approximately 50 centimetres below the ceiling level of Level 4 of the building and the lower deck was level with the Level 4 slab. Both upper and lower decks contained hop ups which were three planks in width. The hop up on the upper deck was level with the upper deck.

17. The hop up on the lower deck was raised approximately 50 centimetres above the lower deck. The entirety of the lower level deck had been installed by Solid to be level with the Level 4 slab of the building. At some point prior to the incident, the hop up on the lower deck had been altered so that it was raised 50 centimetres above the slab level and the level of the lower deck. Mr Tannous did not know when or by whom scaffolding in this area was altered.

18. None of the planks on the hop ups at Level 4 of the scaffold were adequately secured to the scaffold frame by way of tie bars. Either the planks were not secured at all or were secured by metal tie wires that did not adequately prevent the planks from becoming displaced or falling.

19. At approximately 8:00am, whilst working on the northern side of Level 4 of the scaffolding, Mr Alizada fell through or from the Level 4 scaffolding to Level 3, Unit 306. When he fell, Mr Alizada struck his head against the concrete balcony of Unit 306.

20. Mr Mohammed Jawad (‘Mr Jawad’), a painter employed by Masterpiece, was painting internal walls next to the balcony on Level 3 at or around the time of the incident. Mr Jawad found Mr Alizada unconscious and bleeding heavily. Mr Jawad notified Mr Tannous, who called an ambulance.

21. Mr Alizada was taken to Westmead Hospital where he underwent emergency surgery. At 1:44pm he was pronounced brain-dead and placed on life support in the intensive care unit. Mr Alizada died the following day on 22 June 2017 as a result of a severe traumatic brain injury.

POST INCIDENT INSPECTIONS

22. After the incident, Mr Tannous reinstated a plank that had become displaced from the Level 4 scaffolding lower deck during the incident using a metal tie wire.

23. The NSW Police and SafeWork NSW attended the site on 20 June 2017 at approximately 10:15am. A safety walk of the site was undertaken with representatives from the defendant and Solid.

24. Photographs taken at this time show:

1. Mr Alizada’s bucket of render was situated on the lower deck of the Level 4 scaffold;

2. A plank was missing from the upper deck hop up of the Level 4 scaffold;

3. The planks on the upper deck of the Level 4 scaffold were either not secured or adequately secured to the hop up;

4. A loose plank was found on the Level 3 working deck and a rusted metal tie wire was threaded through the plank;

5. The Level 3 scaffold deck was not level with the Level 3 slab and had been raised approximately 1.02 metres;

6. Some of the planks were not secured or adequately secured to the scaffold and a number of metal tie wires were missing or loose; and

7. A number of metal tie wires were rusted and in very poor condition.

25. The inspection by SafeWork NSW on 20 June 2017 identified:

1. Scaffolding components, tie wires and debris on the scaffolding work decks;

2. Scaffolding planks that were unsecured or inadequately secured to the scaffolding frame;

3. Missing scaffolding planks on the working decks, and notably a plank missing from the Level 4 scaffold upper deck where Mr Alizada was working; and

4. A significant number of metal tie wires used for holding down scaffolding planks that had been removed and/or had snapped.

SYSTEMS OF WORK PRIOR TO THE INCIDENT

26. Prior to the incident, the defendant had the following systems in place to manage safety at the site:

1. Monthly site safety inspections carried out by Mr Tannous;

2. Daily site inspections; and

3. Toolbox talks.

27. The defendant was unable to produce any induction records for workers employed by Tiger, including Mr Alizada.

28. The defendant was aware that the scaffolding was required to be altered from time to time for the workers to complete the rendering and painting of the building. The defendant had the following procedure in place to change or alter the scaffold:

1. Workers were to inform Mr Tannous of the changes they required to the scaffolding;

2. Mr Tannous would engage Solid to complete the necessary changes; and

3. Solid would provide a handover certificate after completing the necessary changes.

29. Whilst this procedure was in place, it was not adequately implemented or enforced by the defendant.

30. The defendant did not have a specific procedure to deal with unauthorised alterations to the scaffolding by trade workers or otherwise.

31. In the days and months leading up to the incident, the defendant had identified and recorded in inspections that the scaffolding had been altered by the trade workers in various locations without authorisation, including as follows:

1. On 27 March 2017, Mr Tannous undertook a site inspection and identified that scaffolding was not compliant, and in particular that the planks on the western side of the perimeter scaffolding had been removed and had not been replaced.

2. On 4 April 2017, Mr Haddad issued an instruction stating, inter alia, that he had the power to remove workers from the site for non-compliance with instructions.

3. On 13 April 2017, Solid attended the site, inspected the scaffolding, made adjustments to the scaffolding, and issued a handover certificate. The handover certificate specified that scaffolding was not to be altered or dismantled by anyone other than Solid authorised workers.

4. On 19 April 2017, Mr Haddad issued a written instruction to Mr Tannous to implement the ‘OHS folder and system’ noting that the folder was not up to date. The instruction included as follows:

‘On a number of occasions I have instructed you that you must implement the OHS folder and system in Hadcon Constructions Pty Ltd. I see that the folder is not up to date … It is your responsibility to inform all contractors/people working on the site that the scaffold is not to be touched or altered with. If they are require (sic) any boards or scaffold moved they must advise you … As I was entering the site I saw renderers moving or adjusting scaffold to suit. Send an email to [email protected] and put them on notice that their workers on site have been spotted moving scaffold.’

5. On 28 April 2017, Mr Tannous conducted a site safety inspection. The inspection checklist recorded the scaffolding as compliant, through noted that ‘trades still moving [the scaffolding] without permission and not always returning’.

6. On 28 April 2017, a toolbox talk was held. The talk was attended by seven workers though their names were not recorded on the toolbox talk document. It was recorded that the toolbox talk involved discussion about the scaffolding being moved, though it was noted ‘once again all agree but won’t take long before they’re back to their old habits!’.

7. On 1 May 2017, Mr Haddad issued a further instruction to Mr Tannous instructing him, inter alia, to:

‘…conduct a full safety inspection to the site and ensure handrails, leads, are all tagged accordingly … advise each person in your toolbox talk not to touch or alter scaffolding … contact George Kanaan [of Solid] to conduct a full safety inspection in relation to his scaffold and give us a handover certificate as required.’

8. On 22 May 2017, a toolbox talk was held, discussing that the ‘scaffolding [was] not to be altered’. The record of the toolbox talk notes that six workers were in attendance, although only three workers signed the record, and their names were not recorded.

9. On 25 May 2017, Solid attended the site inspected the scaffolding, made adjustments, and issued a further handover certificate. After Solid had attended the site, the defendant again became aware that non-authorised trade workers were making alterations to the scaffolding.

10. On 29 May 2017, Mr Tannous undertook a site safety inspection. Mr Tannous recorded the scaffolding as being compliant.

11. The defendant’s daily site checklists for 14, 15 and 16 June 2017 all recorded issues with the scaffolding including missing boards, ledgers and planks that needed to be reinstated.

12. On 16 June 2017, a toolbox talk was conducted. The talk was attended by three workers though the names of the workers were not recorded. The toolbox talk involved discussion about ‘site safety – scaffold to be replaced if removed’.

13. The daily site checklist for 17 and 19 June 2017 did not record any problems with the scaffolding.

14. The daily site checklist for 20 June 2017 had not been completed prior to the incident.

32. Notwithstanding that the defendant knew on multiple occasions that the scaffolding had been altered without authorisation, it did not prohibit access to the scaffolding or those areas that had been altered until the scaffolding had been rectified or certified as being safe to use by Solid, or another competent person by way of a handover certificate.

33. The defendant did not provide adequate information, training or instruction to all workers at the site, including Mr Alizada, that the scaffolding was not to be altered and if it needed to be altered, the site manager was required to be informed. On a number of occasions, toolbox talks discussing the unauthorised alterations of the scaffold were not attended by all workers at the site. Additionally, at a toolbox talk held on 16 June 2017, workers were instructed to replace scaffolding components if they removed them, which was contrary to the procedure of the defendant which specified that workers were to notify Mr Tannous of any required alterations which were then to be undertaken by the authorised workers of Solid.

34. The inspections undertaken by the defendant prior to the incident were inadequate, as they did not identify the significant issues with the scaffold.

35. The defendant did not prevent the unauthorised alteration of scaffolding on the site by way of adequate supervision and/or appropriate disciplinary action against those workers altering scaffolding, such as excluding workers form the site or issuing non-conformance notices.

36. Although Mr Haddad had issued Mr Tannous a direction to instruct workers to not alter the scaffolding, the defendant did not verify that Mr Tannous had complied with the direction.

GUIDANCE MATERIAL

Work Health and Safety Regulation 2011 (NSW)

37. The defendant had a duty under Part 3.1 of the Work Health and Safety Regulation 2011 (NSW) (‘the Regulation’) to:

1. identify reasonably foreseeable hazards that could give rise to risks of health and safety;

2. eliminate the risk to health and safety so far as reasonably practicable, and if not reasonably practicable to do so, minimise the risk so far as reasonably practicable by implementing control measures in accordance with the hierarchy of risk control under Clause 36 of the Regulation;

3. maintain the implemented control measure so that it remains effective; and

4. review and, if necessary, revise all risk control measures

38. The defendant also had a duty to ensure so far as was reasonably practicable the scaffolding was maintained so that it remained effective, including that the scaffolding was and remained;

1. fit for purpose; and

2. suitable for the nature and duration of the work; and

3. installed, set up and used correctly (Clause 37 of the Regulation).

39. Where there is a risk of falling more than 2 metres, scaffolding work is classed as ‘high risk [construction] work’ under Clause 291(a) of the Regulation. As such, the defendant had a duty to ensure so far as reasonably practicable that scaffolding work was carried out by, or under the supervision of, a person who was appropriately qualified and licensed to perform high risk scaffolding work in accordance with Part 4.5 of the Regulation.

SafeWork NSW Code of Practice and Guides

40. SafeWork NSW’s Code of Practice Managing the Risk of Falls at Workplaces (‘the 2016 Code’) commenced in April 2016 and is an approved Code of Practice under section 274 of the Act. It was available prior to and at the time of the incident and provides relevant information on maintaining scaffolding as a control measure to prevent falls. In particular, the 2016 Code provides as follows.

40. Safety considerations for scaffolding include:

1. conformance with Australian/New Zealand Standard 4576 (AS/NZS) Guidelines for scaffolding and the AS/NZS 1576 Scaffolding series;

2. ensuring all scaffolding is erected, altered and dismantled by competent persons (and that any scaffold from which a person or object could fall more than four metres must be erected, altered or dismantled by or under the direct supervision of a licensed scaffolder);

42. Where work is performed from a scaffold, the PCBU must ensure that the relevant workers understand:

1. not to make any unauthorised alterations to the scaffold (such as removing guard rails, planks, ties, toe boards and braces);

2. that working platforms need to be kept clear of debris and obstructions along their length; and

3. that incomplete or defective scaffolds must never be accessed.

43. SafeWork Australia published a General Guide for Scaffolds and Scaffolding Work in July 2014. The guide was readily available online prior to and at the time of the incident. The guide provides the following relevant information:

1. The Scaffolding Guide should be used by persons who own, hire, lease, handle, store, transport, maintain, use scaffolds and scaffolding or manage scaffolding work in the workplace;

2. Persons who have specific responsibilities for scaffolds and scaffolding include principal contractors for construction projects;

3. A person who erects, alters or dismantles any scaffold must be competent to do the work safely. A person undertaking scaffolding work must hold the relevant class of scaffolding high-risk work licence as required by the Regulation;

4. A person with management and control of a scaffold at a workplace has a responsibility to ensure the scaffold is inspected and maintained so it is safe to use. This includes inspections at handover and post-handover and after scaffold repairs, modifications or additions;

5. Scaffold planks on working platforms should be secure so they cannot be kicked off or susceptible to uplift or displacement during normal use;

6. Tie wire or another system not structurally rated should not be used to secure planks on hop up brackets;

7. In respect of hop up brackets, each hop up bracket should be provided with tie bars unless constructed with scaffold planks locked into position to stop brackets from spreading apart or causing planks to dislodge unless otherwise specified by the scaffold designer;

8. In respect of altering scaffold, a PCBU should ensure systems are in place to identify unauthorised interference with a scaffold, for example, regular inspections; and

9. Hazards that may increase the risk of falls include incomplete scaffolds or loose scaffolding in areas where work is being done or is likely to be done and inadequate training, instruction and supervision of scaffold workers.

44. SafeWork Australia has also published a “Guide to Scaffold Inspection and Maintenance” dated July 2014. The guide was readily available online prior to and at the time of the incident. The guide provides the following relevant information:

1. For scaffolds from which a person could fall more than 4 metres:

1. the scaffold must not be used unless there is written confirmation from a competent person that they have inspected the scaffold and the construction of the scaffold is complete;

2. the scaffold and its supporting structure must be inspected by a competent person at least every 30 days;

3. if an inspection indicates that a scaffold or its supporting structure creates a risk to safety any necessary repairs, alterations and additions must be made and the scaffold and its supporting structure must be inspected by a competent person before the scaffold is used;

2. Scaffold with a fall risk of less than 4 metres should also be inspected before use and after any incident, repair, alteration or addition;

3. Inspecting scaffolds and scaffolding at a workplace is particularly important when the scaffold is in place for a long period of time;

4. Once a scaffold has been erected a handover inspection should be completed to check the scaffold is safe to use. Where written confirmation from a competent person is required this usually takes the form of a handover certificate. If alterations, repairs or additions to the scaffold are required a further inspection should be completed and a new handover certificate provided;

5. Regular post-handover inspections should be completed once the scaffold is in use. How often these inspections are done will vary depending on the type and size of the scaffold, scaffold use, workplace conditions, the weather and any risk of scaffold collapse;

6. If an inspection identifies a problem, access to the scaffold must be controlled and any necessary repairs, alterations or additions completed. Once the work is complete, the scaffold must be inspected again. Where written confirmation from a competent person is required a new handover certificate should be provided.

AS/NZS 4576:1996 Guidelines for Scaffolding

45. AS/NZS4576: 1995 Guidelines for Scaffolding, which was available to the defendant prior to and at the time of the incident, provides the following information:

1. Planks or decking forming the surface of a working platform should be fixed to prevent uplift or displacement in normal use (Clause 8.7);

2. The working platform must contain no litter and must not have been adversely affected in any way by previous users (Clause 12.2);

3. Scaffolds must be inspected a number of times during use to determine the need for any modifications or repairs that may be required to keep the scaffolds in a serviceable condition. All inspections, servicing and tests must be carried out by a competent person. The appropriate intervals between inspections depend upon the site conditions, the nature of the work, the degree of risk associated with a failure of the scaffold, and the recommendations or specifications given by the scaffold design and equipment supplier (Clause 13.2);

4. It is crucial that an inspection can determine whether working platforms are secured and protected and that the scaffold will enable the relevant work tasks to be performed adequately and safely (Clause 13.5);

5. Where damaged by other construction activities or by environmental conditions, erected scaffold should not be used until repairs have been carried out. Before carrying out repairs, isolate the area around the scaffold to protect other people. Repairs should be completed and, before further use, the scaffold must be re-inspected by a competent person (Clause 13.6).

SYSTEMS OF WORK AFTER THE INCIDENT

46. Following the incident, the defendant:

1. Instructed Solid to rectify the scaffolding. In the area where Mr Alizada fell, the raised section of the Level 4 scaffold was reinstated to be level with the Level 4 slab. Solid also re-installed tie bars on the remaining hop ups.

2. Installed signage to communicate that scaffolding was not to be altered;

3. Provided training and information in toolbox talks to workers about the importance of not altering scaffolding;

4. Engaged an external safety consultant who was responsible, along with the site manager, for conducting safety inspections and monitoring and enforcing safety procedures; and

5. Increased the number of safety inspections.

CONSIDERATIONS

47. I have had regard to the objectives set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the Sentencing Act’) for the purpose of sentencing.

THE NATURE OF THE DUTY

48. The nature of the duty is one that requires a PCBU to ensure as far as reasonably practicable the health and safety of workers at the workplace. The duty included ensuring, so far as is reasonably practicable, the provision and maintenance of safe plant (such as scaffolding), safe systems of work and the provision of information, training, instruction or supervision necessary to protect persons from risks to their safety: section 19(3) of the Act.

49. The duty required the defendant to identify risks in the workplace and adopt measures to eliminate or minimise them: Kirk v Industrial Commission of New South Wales [2010] HCA 1 at [34].

50. The notion of reasonable practicability is informed by the considerations found in section 17 of the Act. The defendant, by its plea of guilty, has admitted that the measures to ensure safety pressed by the prosecutor would have been reasonably practicable.

51. The duty is one of strict liability: section 12A of the Act. Consequently, there is no relevant mental element to the offence whether it be a reference to intent, carelessness or recklessness.

MAXIMUM PENALTY

52. The maximum penalty for a corporation in respect of an offence under section 32 of the Act is $1.5 million. The level of the fine prescribed evidences a legislative intention that offences are to be treated seriously.

53. In Markarian v The Queen (2005) 228 CLR 357 at [31], Gleeson CJ, Hayne and Callinan JJ set out three reasons why sentencers should have particular regard to the maximum penalties proscribed by statute. Their Honours stated:

‘…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the relevant factors, a yardstick.’

SENTENCING PRINCIPLES

54. The penalties imposed must give effect to the intention of the Act, in particular, protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: section 3A of the Act.

55. The court is to be guided by the provisions of the Sentencing Act which include:

1. Section 3A which sets out the purpose of sentencing;

2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and

3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

56. The approach to sentencing has been identified by Russell DCJ in SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 in this way:

‘109. 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.’

OBJECTIVE SERIOUSNESS OF THE OFFENCE

57. The duties of the defendant require that it ensure that the health and safety of workers as far as reasonably practicable. This duty is not delegable and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

58. Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking in to account such factors.

59. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474-5.

60. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700, 714 [31].

61. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen [2012] VSCA 82 at [62].

62. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61.

63. In Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96, Basten JA explained the approach to sentencing as follows:

‘[34] 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 to guard against 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.

…..

[42] 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.’

64. Further, at [53], his Honour said that the seriousness of the risk of injury cannot be discounted by reference to the unlikelihood of injury occurring. The conduct to be assessed is the failure to respond to a risk of injury. The conduct will be considered more serious the more serious the potential injuries, whether or not they are likely to materialise.

65. The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, the more serious the offence will be.

66. The relevant factors in determining the defendant’s culpability are:

1. The risk of a person falling from or through defective scaffolding was an obvious and forseeable risk. Injuries on building sites are notorious. Too many people suffer terrible injuries falling from ladders and scaffolding, and through roofs and ceilings.

2. Prior to the incident there was ample guidance material available to the defendant setting out, amongst other things:

1. The requirement of scaffolding work to be undertaken by a competent person, i.e. a licenced scaffolder;

2. The requirement for persons conducting businesses to ensure persons working from scaffolding do not make unauthorised alterations to the scaffolding and do not access incomplete scaffolding;

3. The requirement to ensure the scaffold is inspected and maintained so that it is safe to use, including inspections at handover, post-handover and after scaffold repairs, modifications or additions;

4. The importance of inspections determining whether working platforms are secure;

5. That scaffold planks should be secure and not capable of displacement during normal use;

6. That tie-wire should not be used to secure planks to hop-ups; and

7. That scaffolding is not to be used unless there is written confirmation from a competent person that it has been inspected, is complete, and a handover certificate has been issued.

3. Scoffold planks should always be secure and not capable of displacement during normal use. This is simply a matter of common sense.

4. The defendant knew about the risk of falling from or through defective scaffolding as it had, prior to the incident, developed a procedure that was aimed at managing it. The procedure was that workers were required to notify the defendant or Mr Tannous if alterations to the scaffold were necessary. If that was done, then the procedure was that the defendant would contact the scaffolding contractor and ask them to make the necessary alterations. Unfortunately, this procedure was not adequately implemented or enforced.

5. Where this procedure fell down was that it did not dictate what was to happen when unauthorised alterations had been made to the scaffold. This was known to the defendant as Mr Haddad had observed such unauthorised alterations. He had left instructions for Mr Tannous about how this was to be dealt with on a number of occasions.

6. However, rather than implementing a procedure to deal with this occurrence, Mr Tannous re-instated scaffolding components from time to time and instructed other workers to do the same. The fact that interference with the scaffold was done by others on the worksite does not however reduce the defendant’s culpability.

7. It is common ground that the defendant has been unable to produce any documents recording the provision of a Hadcon site induction to Tiger Construction’s workers engaged on the site, including Mr Alizada. I do however accept that Mr Haddad had provided Mr Tannous with site instructions regarding compliance with the defendant’s Site Specific OH&S and Environmental Safety Plan – including instructions regarding the maintenance of a proper, documented site record. I also accept that Mr Haddad gave additional directions to Mr Tannous about the interference with the scaffold.

8. Despite the specific written site instructions provided by Mr Tannous on 4 April 2017, 19 April 2017 and 1 May 2017, it is common ground that during the course of May 2017, Mr Tannous was observing unauthorised interference with the scaffold and undertaking the reinstatement of scaffold that had been moved and or altered. It is also common ground that the notes of the toolbox talk on 16 June 2017 indicate that Mr Tannous instructed the trades present as follows:

‘Site safety – scaffold to be replaced if removed.’

9. The defendant accepts that;

• it is responsible for the acts and omissions of Mr Tannous; and

• that there were additional steps which it should have taken in relation to;

1. the provision of adequate information, instruction and training of Mr Alizada, in relation to the maintenance of scaffold safety; and

2. the provision of adequate supervision of the trades who worked from the scaffold on the site to confirm that its system of work which required unauthorised trades not to alter or otherwise interfere with the scaffold, and

3. verifying that its site manager/foreman, Mr Tannous implemented and enforced its system of work by devising and implementing a better system for verifying compliance.

10. The likelihood of the risk coming home was high in circumstances where the defendant had not implemented or enforced an adequate system of work to manage the risk, in particular undertaking frequent and adequate inspections of the scaffold.

11. The risk was also heightened as the defendant had failed to provide adequate information, instruction, training and supervision of the workers, including Mr Alizada to ensure that the system was implemented and enforced.

12. The gravity of the risk was extreme. The defendant’s conduct is serious because the potential injuries were catastrophic. The gravity of that risk is unfortunately demonstrated by the fatal injuries sustained by Mr Alizada.

13. There was little burden or inconvenience in undertaking the measures identified in the Amended Summons. After the incident, the defendant took immediate steps to engage a competent person to rectify the scaffolding, and provided adequate information to the workers about the requirement not to make unauthorised alterations, in the form of signage and tool talks. The defendant also increased the number of inspections.

67. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 per Latham J at [17]-[18].

67. The maximum penalty for this offence is a fine of $1,500,000.00, which reflects the legislature’s view of the seriousness of the offence.

68. By its plea, the defendant has conceded that there were steps which, in all the circumstances of the incident were reasonably practicable, and if taken, would have reduced the risk.

69. The defendant acknowledges that it was aware of the risk of falls associated with working at heights, and more particularly, the risk associated with working at height on a scaffold.

70. The defendant submits that, for the purposes of sentencing, the defendant is a relatively small, family run company which historically, has been moderately profitable, and it must be compared with the size of other corporate entities and sole traders. To this end, I note the following observations made by Basten J in Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266:

‘[79] Apart from factors already considered, it is necessary to address any questions raised at the sentencing hearing as to capacity to pay. Such questions arise in two ways. 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 (NSW). The sentencing judge found that Hanna Plumbing and Unity each had “a reduced capacity to pay a fine”, but appears to have fixed the level of the fine primarily by reference to the culpability of the defendants.’

72. I note the defendant has only three employees, including Mr Haddad. I have had regard to the financial documents which are part of Annexure P to Mr Haddad’s affidavit (Exhibit 1), and I accept that the defendant is a small entity, and on that basis I propose to allow it some leniency, as a significant fine would have a deleterious effect on the business.

73. I accept that this offence falls within the mid-range of offending.

DETERRENCE

74. In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in section 3A(b) of the Sentencing Act.

75. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388.

76. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence. I agree with that submission.

77. The Court of Criminal Appeal in Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at which said:

‘[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

‘[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.’

78. General deterrence must be a significant feature of the sentence imposed upon the defendant. Scaffolding and its use create a significant risk of injury to workers in a variety of industries, and the operation and conduct of users of that scaffolding must be properly and appropriately assessed as to the risk the workers and to those working around the vicinity, and appropriate action must be taken to deal with the assessed risks.

79. Similarly, general deterrence can be appropriately used to direct industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks associated with the use and management of scaffolding in an industrial context.

80. The instant offence is one in respect of which general deterrence assumes particular prominence in the sentencing exercise. Its occurrence is widespread in the construction industry as a result of frequent poor management of what is an inevitable risk in that environment. In SafeWork NSW v Orbit Formwork Pty Limited [2019] NSWDC 685, Russell SC DCJ held as follows:

‘[1] This is yet another case involving a fall from height resulting in serious injury. In previous sentencing judgments this court has remarked upon the high number of such cases. It is almost an epidemic. The prosecutor tendered statistics showing that in the three years between 1 July 2016 and 30 June 2019 there were 1,414 falls related incidents reported to Safework NSW, an average of nine a week. In that period there were 22 deaths. In many of the cases which have come before this court the fall from height leaves a worker, often a young or inexperienced worker, with a traumatic brain injury – Safework NSW v Emu Group Pty Limited [2019] NSWDC 537 at [63-64] …

[2] Part of the sentencing process, and one of the objects of sentencing, is to prevent crime by deterring the offender and other persons from committing similar offences – s 3A(b) Crimes (Sentencing Procedure) Act 1999. The District Court publishes on Caselaw each and every sentencing judgment under the Act. Thus the industrial community is informed of the significant penalties imposed for offences under the Work Health and Safety Act 2011 (NSW) (the Act), which in theory should have a deterrent effect on persons other than the offender. Further, additional purposes of sentencing include to denounce the conduct of the offender, and to recognise the harm done to the victim of the crime and the community – s 3A(f) and (g) Crimes (Sentencing Procedure) Act 1999.

[3] The statistics tendered in this case show that there has been no real decline in falls related incidents over the last three years. Clearly the message sent by the level of penalties being imposed is not getting through to the industrial community and such penalties are not achieving the aim of general deterrence.

[4] The sentence in this case will be imposed having regard to the level of sentences set out in previous judgments of this court for similar offences.

[5] However, the time is rapidly approaching when the courts may have to consider whether the penalties imposed for such offences should be increased above the current levels.’

81. In SafeWork NSW v Emu Group Pty Limited [2019] NSWDC 537, Russell SC DCJ noted that since the start of 2016, the District Court had delivered sentence in 42 cases involving a fall from height. Additionally, this court has dealt with a number of matters involving falls from defective or incomplete scaffolding in the construction industry.

82. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

83. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors.

84. In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]-[242]:

‘There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald’s) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316.’

85. The defendant continues to operate the business with significant changes to address the issues of work health and safety. I note that the defendant now employs Mr Nila Navan as a site based project manager as a response to this incident. Mr Navan is a qualified Surveyor and an experienced construction project manager. Whilst I believe there must be an element of specific deterrence, I do however believe that the prospects of rehabilitation are good.

MITIGATING FACTORS

86. What is required for a mitigating factor in section 21A(3)(e) of the Sentencing Act is that the offender does not have any record of previous convictions or “any significant record of previous convictions”. I note that the defendant has never been charged with any previous offences, and as such has an impressive record. I accept that the defendant is unlikely to re-offend: section 21A(3)(g) of the Sentencing Act.

87. The defendant entered a plea of guilty at an early stage and is entitled to a discount of 25% based on the utilitarian value of the plea: section 21A(3)(k) of the Sentencing Act. I accept that the entry of the early plea is an exemplar of the acceptance of the responsibility for the accident, and a recognition of the defendant’s desire to improve its work practices. There is no evidence before me that any behaviour of the defendant which would disentitle the defendant to the full benefit of the discount: section 25D of the Sentencing Act.

88. At paragraphs [84]-[91] of his affidavit, Mr Haddad expresses contrition and remorse on behalf of the company, and sorrow that the safety system failed to protect Mr Alizada. I accept that this is genuine: section 21A(3)(i) of the Sentencing Act.

89. The defendant co-operated with the SafeWork investigation and co-operated with all statutory notices issued by SafeWork NSW, including two Prohibition Notices and six improvement notices: section 21A(3)(m) of the Sentencing Act.

90. I have had regard to the matters raised in paragraphs [71]-[78] of Mr Haddad’s affidavit and annexures H to P to that affidavit. The defendant has received many awards for its projects and provides significant professional support to charitable construction works by way of construction advice and project management services at cost. The defendant also provides financial support to charitable activities. I have had regard to the references provided for the defendant (Exhibits 2, 3, 4 and 5) and I accept that the defendant is a good corporate citizen: section 21A(3)(f) of the Sentencing Act.

91. It is apparent from the report of Dr John Cosgrove tendered (Exhibit O to Mr Haddad’s affidavit and the matters deposed to therein) that the incident has had a significant effect on Mr Haddad’s personal and professional life. He has required significant psychiatric and psychological treatment and support, and this has also impacted his capacity as the director of the defendant. Whilst not a specified mitigating factor in section 21A(3) of the Sentencing Act, this is a matter that to my mind, also calls for some leniency, as it points generally to the impact of the offence on the defendant, and as such it is unlikely to re-offend: section 21A(3)(g) of the Sentencing Act.

AGGRAVATING FACTORS

92. As a consequence of the injuries sustained by Mr Alizada in the incident, he lost his life.

PENALTY

93. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the defendant would be $120,000.00 and that will be reduced by 25% to reflect a plea of guilty.

3. I accordingly order the defendant to pay a fine of $90,000.00.

4. 50% of the fine imposed is to be paid to the prosecutor.

5. The defendant is to pay the prosecutor’s costs as agreed or assessed.

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Decision last updated: 19 June 2020