SafeWork NSW v Mennen Constructions Pty Ltd

[2024] NSWDC 446

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Mennen Constructions Pty Ltd [2024] NSWDC 446

Hearing dates:

02 September 2024

Date of orders:

25 September 2024

Decision date:

25 September 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Mennen Constructions Pty Ltd is convicted.

2   I impose a fine of $180,000.

3   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

4 I order that pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Jahandideh v R [2014] NSWCCA 178

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Mennen Constructions Pty Ltd (Offender)

Representation:

Counsel:
J Simpson (Prosecutor)
E Aitken (Offender)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
The Law Man (Offender)

File Number(s):

2023/255565

Publication restriction:

None

JUDGMENT

1. Mennen Constructions Pty Ltd (the offender) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (the Act) in that it failed to ensure the health and safety of workers while at work in the business or undertaking, pursuant to s 19(1) of the Act and thereby exposed Hui Li to a risk of death or serious injury.

2. The maximum penalty for the offence is a fine of 17,315 penalty units ($1,782,579).

Facts

3. The parties have presented an Agreed Statement of Facts. I have taken the entirety of this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

Background

4. The offender conducted a construction business performing residential and commercial renovations, and new builds.

5. On or around 11 January 2021, the offender was engaged as the principal contractor for the construction of a new two-storey duplex at 51 Macquarie Street, Fairfield (the site).

6. Hameed Mghder was the sole director of the offender. He was a person who made decisions that affected a whole or substantial part of the offender’s business including work health and safety policies. Mr Mghder was referred to as the builder and site manager at the site. He attended the site approximately three days a week, performed checks on work while on site and would discuss the work with subcontractors.

7. The offender engaged Ali Al-Shawany as its site supervisor.

8. The offender engaged subcontractor Kim Houi Metal Works Pty Ltd (KHMW) for the supply and installation of roofing, fascia and guttering (roofing works) at the site. KHMW engaged Mr Li and Hong Lin Ning to perform the roofing work. Mr Li spoke basic English. He had 14 years’ experience in the construction industry.

The incident

9. On or around 3 September 2021 the construction of the external structure of the two-storey duplex had been completed. Mr Al-Shawany phoned Mr Li and notified him that the works had progressed to a stage where Mr Li could return to the site to complete the waterproofing of the garage roof of the building when he had “free time”.

10. Prior to the incident, there had been scaffolding in place at the rear of the site. During his phone call to Mr Li, Mr Al-Shawany informed Mr Li that the scaffold was being removed. Mr Al-Shawany did not discuss how the work was to be completed with Mr Li and relied on Mr Li’s experience to determine how the works would be completed.

11. On 6 September 2021 at approximately 7:30am, Mr Li and Mr Ning attended the site for the purpose of conducting the works on the garage roof, including applying silicone to gaps between the eastern wall of the structure and the roofing sheets of the garage roof.

12. The garage roof was approximately equivalent to the height of the first floor of the structure. The underside of the garage roof was approximately 3.4m above ground level.

13. Mr Li and Mr Ning commenced work without speaking to anyone else at the site. Mr Mghder was present at the site at this time.

14. At approximately 8am, Mr Al-Shawany arrived at the site and observed Mr Li undertaking the roofing works using an A-frame ladder. He greeted Mr Li but did not engage in any further conversation.

15. Mr Li climbed onto the garage roof using the A-frame ladder to perform the works. Mr Ning assisted by passing Mr Li items while Mr Li was working on the roof. Mr Ning did not access the garage roof while assisting Mr Li.

16. While on the garage roof, Mr Li placed his left foot on the fascia at the southern edge. The fascia moved under his weight, causing him to lose balance and fall over the edge of the garage roof and over a dividing fence, landing on the concrete driveway of the neighbouring property.

17. Mr Al-Shawany heard Mr Li fall and proceeded to attend to Mr Li and call an ambulance. He and Mr Mghder were standing on the footpath at the front of the site at the time of the incident.

Injuries sustained by Mr Li

18. As a result of the fall, Mr Li suffered a traumatic brain injury, including multiple intracranial haemorrhages, a temporal facture, a skull and inferolateral orbital wall and lateral maxillary sinus facture as well as multiple spinal and chest fractures. Mr Li was hospitalised between 6 September 2021 and 24 October 2021. He was transferred to the Brain Injury Unit at Royal Ryde Rehabilitation on 25 October 2021 for ongoing management.

19. As at 28 November 2023, Mr Li had not returned to work and still experienced significant memory loss.

Systems of work prior to the incident

20. The offender performed a site induction with workers on their first attendance at the site. The induction required workers to provide their name and contact details, a copy of their White Card, and other documents including any Safe Work Method Statements (SWMS).

21. As part of the induction undertaken with KHMW workers, the offender was provided with a SWMS dated 3 June 2021 titled “Fascia, Eves and Guttering” that was prepared by KHMW. The SWMS included a section referring to site specific requirements which listed working at heights as a possible hazard and safety controls listed as, “safety rail, harness”. The SWMS identified Mr Al-Shawany as the site supervisor.

22. The offender did not consult with KHMW in developing the SWMS nor require KHMW to follow the SWMS at the site.

23. Prior to Mr Li undertaking works on the garage roof, the offender did not undertake a risk assessment or Job Safety Analysis that identified the hazards, assessed the risks and identified control measures.

24. No fall protection system was in place or provided by the offender for work on the garage roof. No guardrails or temporary scaffolding were in place. The offender did not provide other fall prevention devices such as temporary edge protection or confirm that its subcontractor had provided their own and were utilising such equipment.

25. The offender conducted semi-regular toolbox talks with workers at the site. A toolbox talk was undertaken on 30 August 2021 with Mr Li in attendance. This talk was conducted in English and identified tasks relating to working at heights.

26. The offender did not provide adequate supervision to KHMW workers, including Mr Li, when they were undertaking the works on the garage roof at the site. The offender did not direct its subcontractors to cease work as no fall protection system was in place. Mr Mghder and Mr Al-Shawany did not supervise the works being conducted. The offender did not communicate to KHMW workers when the work was to be completed and the scope of the works.

Steps taken by the Offender after the incident

27. After the incident, SafeWork NSW issued multiple notices to the offender relating to risks around working from heights.

28. In response to these notices, the offender:

1. installed handrails and temporary scaffolding around the site where there were risks of falls from heights, including the garage roof; and

2. increased the frequency of toolbox talks.

The Offender’s Case on Sentence

29. The offender read and relied upon the affidavit of Hameed Mghder affirmed 12 August 2024. The following is a summary of his evidence.

Background and qualifications

30. Mr Mghder was born in Baghdad, Iraq in 1968. He completed an economics degree from Baghdad University in 1993.

31. Mr Mghder migrated to Australia by boat in 2000 as an asylum seeker. He was granted a Temporary Protection Visa in 2001 and became an Australian Citizen on 10 July 2008.

32. Mr Mghder has worked in the Australian construction industry since 2001. He has the following credentials:

1. Recognising Skills in the Construction Industry through TAFE in 2003;

2. Certificate II in Computer Applications for the Office from TAFE in 2007;

3. Certificate IV in Building and Construction (Building) with the Master Builders Association (MBA) in 2011;

4. Diploma in Building with the MBA in 2011.

33. He is the sole director of the offender.

The offender

34. Mr Mghder established the offender in 2013 and it has been operating continuously since then.

35. At the time of the incident, the offender was contracted to undertake two residential building projects, including the project at Fairfield and another project at Gregory Hills. At the date of Mr Mghder’s affidavit, the offender is contracted to undertake two residential building projects.

36. At various times the offender has had up to four employees working at any one time, including those employed to work on site and in an administrative capacity. As at the date of Mr Mghder’s affidavit, the offender had three employees in addition to Mr Mghder as follows:

1. a part-time employee who assists with project management and administration;

2. a full-time employee who is employed as the Officer Manager; and

3. a part-time employee who is an Electrician and employed as a Project Manager.

The Site

37. The offender commenced working at the site in February 2021. The offender had two full time employees on the project, Mr Mghder and Mr Al-Shawany.

38. Mr Mghder would attend the site approximately three days a week, when he was not visiting the other site where the offender was undertaking work at the same time. Mr Al-Shawany worked at the project site full time. During the visits, Mr Mghder would supervise the work being performed by the subcontractors and attend to other contract administration matters.

39. The offender engaged a number of subcontractors to work on the project, to undertake bricklaying, plumbing, electrical, excavation, steel framing and fixing, roof and guttering installation and window installation.

40. The offender engaged KHMW to supply and install the roofing, fascia and guttering on the project. Mr Mghder had previously used KHMW’s services on a project involving the construction of a villa in Campbelltown in or around September 2020. Prior to commencing work, KHMW provided the offender with a SWMS for the work it was going to undertake. KHMW commenced work on the project in approximately June or July 2021.

41. For a period during the course of the project, scaffolding had been erected for use while work was being undertaken on the first floor and roof. Before 6 September 2021, while working on the first floor and the roof, Mr Li and Mr Ning had used the scaffolding. KHMW also provided harnesses for its own workers. The scaffolding was removed from the project site by HZ Scaffolding Pty Ltd approximately one week before the incident.

The Incident

42. Prior to 6 September 2021, Mr Al-Shawany telephoned Mr Li and requested that he return to the site to complete the work on the garage roof. Mr Li and Mr Ning returned to the site at approximately 7:30am on 6 September 2021 for this purpose. Mr Mghder arrived at approximately 7am. After they began to work, Mr Mghder saw Mr Li standing on the ladder applying the silicone.

43. At the time Mr Li fell off the roof, Mr Mghder was meeting with Mr Al-Shawany and another sub-contractor at the rear of the building. He did not witness Mr Li fall but heard a scream. Mr Mghder and Mr Al-Shawany walked to the front of the building and found Mr Li lying on the floor of the neighbouring property. Mr Al-Shawany called an ambulance and he, Mr Mghder and Mr Ning waited with Mr Li until the ambulance arrived.

44. Mr Mghder contacted Mr Li’s family and sought to visit him in hospital, however, was told by Mr Li’s family that Mr Li did not wish to see him.

Expression of regret

45. On behalf of the offender, Mr Mghder in his affidavit, accepts responsibility for the failures that exposed Mr Li to the risk that resulted in the incident. Mr Mghder, on behalf of the offender, acknowledges and regrets the serious impact that the incident has had on Mr Li and his family, as well as the impact it has had on the offender’s other workers. Mr Mghder, in his affidavit, apologises to Mr Li, his family, the workers affected and the Court.

No prior convictions

46. The offender does not have any prior convictions under work health and safety laws. This is the first time the offender has been subject to an investigation by SafeWork NSW.

Consideration

47. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

Objective seriousness

48. The risk of a fall from the garage roof was obvious and known to the offender. The risk of a fall from height was referred to in the SWMS that had been provided to the offender.

49. The likelihood of the risk coming home was high if appropriate precautions were not taken.

50. The steps that the offender should have taken to eliminate or minimise the risk were known to the offender, simple and not inconvenient. The offender should have adequately supervised the work and ensured that it was performed in compliance with the SWMS provided by KHMW.

51. Mr Li conducted the work on the day of the incident without following the requirements of the KHMW SWMS.

52. The risk included a risk of death.

53. The injuries sustained by Mr Li were very serious. He has been left with life-long disability and he is unlikely to be able to return to work.

54. I have taken into account the maximum penalty for the offence.

Deterrence

55. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

56. There is some need for specific deterrence in this case because the offender still operates a construction business that potentially exposes workers and other persons to risks as a result of its operation.

Aggravating factors

57. The injury harm and loss caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. The injuries sustained by Mr Li are sufficient to establish the aggravating factor.

Mitigating factors

58. The offender does not have any previous convictions: ss 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender was incorporated in 2013.

59. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender did not put on evidence of the steps it took to address its failings involved in the incident. However, I consider that Mr Mghder has taken the matter seriously and that by reference to his experience of the sentence proceedings, that he understands the importance of safety on the offender’s sites.

60. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Mghder, on behalf of the offender, has accepted responsibility for the offence and expressed remorse. I accept this to be a genuine expression of contrition. The plea of guilty also indicates remorse.

61. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

62. The offender co-operated with the investigation conducted by SafeWork NSW: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Capacity to pay a fine

63. The Court is required to have regard to s 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, he or she bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

64. The offender is a small business that takes on smaller construction projects and usually has two projects in train at any one time. From the value of the project where the incident occurred, I infer that the offender has a turnover of about $1,000,000 per year, from which it would incur significant expenses to pay for materials and the services of contractors.

65. The offender did not put on evidence of its financial position. I am not satisfied that the offender has demonstrated a reduced capacity to pay.

Penalty

66. Mennen Constructions Pty Ltd is convicted.

67. The appropriate fine is one of $240,000 which will be reduced by 25% to reflect the discount for the plea of guilty.

68. I impose a fine of $180,000.

69. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

70. I order that pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

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Decision last updated: 25 September 2024