SafeWork NSW v Poletti Corporation

[2019] NSWDC 491

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491
Hearing dates:	12-16 August 2019; 19-22 August 2019; 30 August 2019
Date of orders:	13 September 2019
Decision date:	13 September 2019
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 The prosecution has proved all of the elements of the offence beyond reasonable doubt. 2 I find the defendant guilty.
Catchwords:	CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of PCBU to other persons – risk of death or serious injury – injury of worker WORK HEALTH AND SAFETY – fall from height - likelihood of risk occurring – whether defendant had knowledge of risk - whether risk reasonably foreseeable – reasonable practicable – fall prevention - control measures – relevance of Australian Standard – provision of work platforms and edge protection - causation
Legislation Cited:	Occupational Health and Safety Act 2000 Work Health and Safety Act 2011 Work Health and Safety Regulation 2013
Cases Cited:	Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 MR & RC Smith Pty Limited trading as Ultra Tune (Osborne Park) v Wyatt (No 2) [2012] WASCA 110 Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 Royall v The Queen (1991) 172 CLR 378 S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5 SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Proprietary Company Ltd (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Limited [2000] NSWIRComm 12 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80
Texts Cited:	Formwork Code of Practice 1998
Category:	Principal judgment
Parties:	Department of Customer Service (Prosecutor) Poletti Corporation Pty Limited (Defendant)
Representation:	Counsel: C Magee (Prosecutor) B Barry (Defendant)   Solicitors: Department of Customer Service (Prosecutor) DWF (Australia) (Defendant)
File Number(s):	2018/565732018/57479
Publication restriction:	None

Judgment

Introduction

1. Poletti Corporation Pty Ltd (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Peter Posa, a worker at work in the business or undertaking, to a risk of death or serious injury contrary to section 32 of the Act.

2. The prosecution have also brought an alternative charge pursuant to section 19(2) of the Act, in the event that Mr Posa does not come within the scope of section 19(1).

3. At about 7:15am on 22 February 2016, Mr Posa was painting the exterior of a building known as the west tower of the Altitude Development at 330 Church Street Parramatta (the West Tower), when he fell 6 metres from a work platform attached to a jumpform screen that provided edge protection for workers engaged in the construction of the building. Mr Posa suffered serious injuries when he fell through a gap formed by the architectural design of the building on the south eastern façade and the edge of the work platform (the void). The defendant was responsible for the design, installation and operation of the jumpform screen system at the West Tower.

4. The defendant admitted Element 1 of the section 19(1) charge and elements 1 and 2 of the section 19(2) charge. Elements 3 and 4 are common to the 2 charges. These elements are set out at [65] - [66] below.

5. The issues in the case are:

1. Was Mr Posa a worker at work in the business or undertaking of the defendant? (Element 2 (s19(1) charge).

2. Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in the Summonses? (Element 3)

3. Did the defendant’s breach of duty expose Mr Posa to a risk of death or serious injury? (Element 4)

Facts

General background

6. Karimbla Construction Services Pty Ltd (Karimbla) was the principal contractor for the construction of two residential apartment towers known as the Altitude Development (the site). Karimbla is part of the Meriton Group of Companies (Meriton).

7. The West Tower was constructed using a jumpform screen system (the system), supplied, installed and operated by the defendant. The defendant was also contracted by Karimbla to undertake the formwork for the West Tower.

Contractual arrangement between the defendant and Karimbla

8. The contract between the defendant and Karimbla contained the following relevant clauses:

Design Drawings

4.11 The Subcontractor must:

(a) Prepare Design Drawings for the Subcontractor Works, and provide the Design Drawings in an electronic form capable of amendment and reproduction to Karimbla before the commencement of the Subcontractor Works and otherwise as requested by Karimbla. Any updated and/or revised Design Drawings must be provided to Karimbla as and when they are updated and/or revised.

(b) Prior to commencement of the Subcontractor Works and again before Substantial Completion, certify that the Design Drawings are fit for the purpose for which they are intended to be used and that they will satisfy the requirements of all authorities (including any governmental agency or judicial body).

…

Australian Standards & Building Code

4.13 The Subcontractor Works must be completed in accordance with all relevant Australian Standards and the Building Code of Australia.

4.14 Upon completion, the Subcontractor shall warrant and certify in a form satisfactory to Karimbla that all work has been completed in accordance with the relevant Australian Standards and the Building Code of Australia.

…

12. WORKPLACE HEALTH & SAFETY

12.1 The Subcontractor must comply with all Relevant Workplace health and Safety Legislation including, without limitation, all statutory requirements for occupational health and safety for the protection of the environment, including any Acts, Regulations, Codes of Practice and Australian Standards, and will ensure that each of its employees, agents, subcontractors and consultants comply in like manner.

12.2 The Subcontractor acknowledges that it has control over all aspects of the execution of the Subcontractor Works and safety issues at the Site.

…

12.4 Failure by the Subcontractor to comply with any provision of this clause shall be a substantial breach of the Agreement. Where the Subcontractor does not carry out the Subcontractor Works in compliance with the Agreement, or in such a way as to endanger the health and safety of person, or is likely to cause damage to plant, property or the environment, Karimbla may suspend the Subcontractor Works until such time as the Subcontractor satisfies Karimbla that the Subcontractor Works will be resumed in accordance with the health and safety and environmental legislation and provisions of this Agreement.

9. The Formwork Scope of Works contained the following relevant clauses:

1. General Requirements

…

1.3 Allow to work (sic) around and coordinate with other trades/subcontractors.

…

7. Formwork Specific Requirements

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7.17 Provide a jump form system to vertical elements, provide safety screens. The Builder is to provide approved concrete geometry drawings prior to commencement of the design of the jump form system. The Form worker is to provide shop drawings of the proposed jump form system with sufficient time as to not affect programme for approval by the Builder prior to fabrication of the system.

7.18 Provide safety screens with drawings with sufficient time not to effect programme and fabrication. Allow for all floors of working decks with four floor screens.

…

7.23 Ensure that there are no holes in the jumpform perimeter decking where a person can fall more than 1 floor.

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8.0 WHS Requirements

8.1 Compliance with the WHS ACT 2011 and Regulation 2011.

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8.3 SWMS must be updated when changes occur and to rectify concerns raised by the site, WHS safety committee, WorkCover or management. The contractor is to identify foreseeable hazards that have potential to harm workers or other persons at the place of work. Any changes to the work procedure require the SWMS will be amended. This plan will be audited by Karimbla WHS officer. All workers must be white card industry inducted.

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8.19 Prevention of falls from heights with securely fenced work platforms otherwise harnesses.

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8.28 Duties of employers under the WHS Act 2011 specifies

Safe access

Ensuring any plant or substances is safe and without risk to health when properly used

Ensuring the system of work is without risk to health

Provide such information, instruction, training and supervision as may be necessary to ensure the workers’ health and safety at work

Provide adequate facilities for the welfare of workers at work

10. The Meriton Minimum Requirements (MMR) were a set of safety instructions issued to contractors by Karimbla in relation to work on its sites. Subsection 2 of the MMR document relevantly provided:

All open edges to structures under construction or demolition (including the construction/demolition floor) from which persons or materials can fall, must be effectively protected by screens, scaffolds. The means of protection employed must be the most robust form of protection that can be used on the structure, taking into account all relevant parameters, such as nature of construction operations, structural stability, weather conditions, etc. Screens are the preferred option and must be considered before any other option is explored. The protection provided must be of sufficient strength and height to prevent people and materials from falling or being blown off the structure. The level of protection planned for any project will be scrutinised to ensure it meets the requirements as part of the project approval process.

Where any works are conducted outside of the perimeter protection which could result in the fall of materials, lanyards should be used to tie-off tools and equipment.

The jumpform screen system

11. The system was a set of mesh screens intended to provide perimeter edge protection to the West Tower during the course of its construction. It consisted of five levels of screens erected around the perimeter of the building. The top two levels provided edge protection for the formworkers and associated trades, who constructed the formwork for the top level of the building prior to the concrete pour and the formworkers on the level underneath, stripping the formwork off the concrete that had cured (the formwork screens). The bottom three levels of screens provided edge protection for the finishing trades, who were required to install glazing, render and paint the external surfaces of the building (the finishing screens). The screens were hydraulically raised or ‘jumped’ on completion of each level of the West Tower. This occurred each week about one day after the concrete pour into the new formwork on the top level of the building.

12. The defendant contracted Sureform Systems Pty Ltd (Sureform) to design and supply the components of the system. Sureform produced design drawings for the system that were provided to the defendant and to Karimbla. Once the design drawings were approved, the system was prefabricated in Melbourne and delivered to site for assembly.

13. The system was erected on site by the defendant. The system was installed when the West Tower basement was being constructed.

14. The inside of the finishing screens were fitted with work platforms to allow the finishing trades to access the façade of the West Tower to do their work.

15. The top level of the finishing screens were constructed so that the leading edge of the work platform was 20mm away from the edge of the building when in position. I will refer to this distance on each level as the horizontal gap. The work platform consisted of a right angle steel bracket attached to the screen. On top of the bracket, three steel C channel purlins were bolted, running parallel to the screen and perpendicular to the bracket. The work platform was made of plywood 1200 mm wide and 20 mm thick, that was riveted to the purlins.

16. The bottom and middle level of the finishing screens were constructed so that the leading edge of the work platform was further away from the edge of the building than the top level of the finishing screens. The defendant’s supervisor, George Ferrara, did not measure the horizontal gap on this level but thought that the leading edge of the work platform was about 200mm further back than the top level of the finishing screens. It appears from one of the photographs taken after the incident by Caroline Magee, a Karimbla Safety Officer, that the work platforms on the middle level of the finishing screens were constructed with two steel purlins rather than three. The work platform was made of plywood but riveted to the purlins. The evidence did disclose how wide the work platform was. I infer from other evidence, that I have accepted for reasons given later, that it was approximately 1000 mm wide.

17. The bottom level of the finishing screens were fitted with hinged plywood flaps to the leading edge of the work platforms to prevent persons, tools and materials falling through. There was no horizontal gap when the flaps were closed. The flaps on the bottom level of the finishing screens were fitted when the system was first erected. These flaps were initially made of aluminium, but were later replaced with plywood flaps because the wind could blow the aluminium flaps open. The plywood flaps affixed to the bottom level of the finishing screens were cut in a batch and were 450mm wide.

18. The void on the south eastern façade of the West Tower was bordered by a concrete column, the return of a balcony on each level and the leading edge of the work platform. This was a repeating architectural feature from about Level 5 of the West Tower to Level 56, the top level of the building. A plywood flap had been manufactured to cover the void on the bottom level of the finishing screen.

19. Mr Ferrara was aware of the existence of the void after the building proceeded past Level 5. Mr Ferrara accepted in his evidence that the horizontal gap in the area of the void exceeded 225 mm.

20. The system was ‘jumped’ once per week. The jumping process consisted of the following steps. The supervisors of the various contractors would be advised when the jump was going to take place. At the time of the jump all workers were evacuated from the formwork and finishing levels, except for the defendant’s workers who were involved in the process. A system of warning lights was activated to indicate that the jump was in progress. Danger tape was set up to indicate that workers could not enter the area. The defendant also positioned eight spotters on each relevant level to ensure that workers did not enter while the jump was in progress. Workers from the defendant went around the bottom level of the finishing screens and raised all of the flaps, so that they were not in contact with the building. A series of push and pull props were then operated to force the screens away from the perimeter of the building. The screens were then raised one level. There was a distance of 3050mm between each level. The push and pull props were then used to pull the screens back closer to the building.

21. At the completion of the jump, the defendant’s workers lowered the flaps on the bottom level of the finishing screens to close any gaps and removed the danger tape. Mr Ferrara would then walk around and inspect the bottom level of the finishing screens to ensure that there were no gaps. Mr Ferrara did not go onto the work platforms to do this but looked from the slab of the building. Mr Ferrara did not walk around the upper levels of the finishing screens because he did not see the need to do so. Mr Ferrara would then inform Karimbla that the jump was completed. Karimbla then advised the finishing trades that they could resume work on the work platforms.

Organisation of the work

22. The defendant had in place a Work Health and Safety Management Plan (WHSMP). The WHSMP relevantly provided:

SAFE SYSTEM OF WORK STATEMENT

…

Risk to other persons   Where our work may affect the work, health and safety of other trades on site or members of the public, we will make sure that adequate precautions are in place to avoid risk of injury or illness.

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Working Platforms on Scaffolds    When we use or supply scaffolding, including mobile scaffold, it will be erected and/or used in accordance with the manufacturer or supplier’s instructions, and good practice, as outlined in AS 1576 or AS 4576.

COMPANY SAFETY POLICY

At Poletti Corporation our Work, Health and Safety and Rehabilitation Policy is based on a belief that the well-being of people employed at work, or people affected by our work, is major priority and must be considered during all work performed on our behalf.

People are our most important asset and their health and safety is our greatest responsibility. The public shall be given equal priority to that of our employees.

The objectives of our Safety Policy are:

...

To ensure health and safety is considered in all planning and work activities.

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To identify and control all potential hazards in the workplace through hazard identification and risk analysis.

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The success of our health and safety management is dependent on:

Pro-active planning of all work activities with due consideration given to implementing occupational health and safety (WHS) controls that are suitable to each given situation.

Understanding the total work process and associated WHS risks.

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HAZARD IDENTIFICATION, RISK ASSESSMENT AND CONTROL

...

To assist in identifying hazards and risks, Poletti Corporation has considered the use of resources such as codes and standards, industry publications (i.e. safety alerts; hazard profiles for specific trade groups), workplace experience and consultation (i.e. Toolbox talks).

23. The defendant had in place a number of Safe Work Method Statements (SWMSs). Each identified the risk of a fall from height.

Karimbla Safety Officers

24. From the commencement of the building work, Karimbla employed a Safety Officer at the site, Jan Recek. Mr Recek had safety qualifications and was primarily responsible for conducting inductions and safety walks to identify potential safety hazards and arrange for them to be rectified. There were three kinds of safety walks.

25. First, daily safety walks were conducted in the morning after inductions to identify hazards and bring them to the attention of contractors or safety labourers to be rectified. This involved starting at the top level of the building and walking down to allow the Safety Officer to observe the state of the work.

24. Second, weekly Health and Safety Representative Committee (HSRC) walks were conducted. Karimbla provided an application on an iPad that enabled the Safety Officer to photograph the issue, describe it, mark it up and assign it to a particular contractor. If urgent issues were identified, the Safety Officer would arrange for it to be rectified immediately. The report from the HSRC walk would be circulated by email and discussed at the next HSRC meeting, which were held once a week on Tuesdays.

25. Third, the Safety Officers would participate in safety walks with the National Safety Manager, James Sykes, when he attended the site. On those walks the Safety Officers would take notes to be actioned by the relevant contractor. The Safety Officers would report to Mr Sykes that those issues had been closed out.

26. A regular issue raised in the various safety walks was a lack of edge protection in various places. This included instances of failure to barricade the approaches to the void from the slab of the building.

27. Safety was also discussed at the weekly builders’ meeting, usually held on a Thursday. A representative from each contractor working on site attended the builders’ meeting, which was predominantly to program the upcoming work at the site. The first part of the builders’ meeting was conducted by the safety officers and used to discuss safety issues arising or occurring at the site.

28. A second Safety Officer, Ms Magee, was employed by Karimbla at the site from about mid-January 2016. Ms Magee also had safety qualifications and undertook similar work to that of Mr Recek.

29. A third Safety Officer, Aram Hekimian, replaced Mr Recek at the site from about 15 February 2016. Mr Hekimian also had safety qualifications and undertook similar work to Mr Recek and Ms Magee.

30. Prior to the incident the risk posed by the void was not identified by anyone from Karimbla.

Events leading up to the incident

33. The external concrete surfaces of the West Tower needed to be rendered and then painted. The renderers were engaged by Manly Warringah Plastering Pty Ltd (MWP). The renderers had to complete their work before the surfaces could be painted, with one coat of primer and then finishing coats of paint. Morris Radovanovic was a painter engaged by MJM Painting Services Pty Ltd (MJM). In the period leading up to the incident, Mr Radovanovic was required to patch the concrete ceilings of the balconies on the levels where the renderers were working. Mr Radovanovic observed the renderers removing the barricade to the void and placing planks and stools across the void to allow them to reach the upper parts of the concrete column in the void area. He also saw the renderers install a piece of plywood over the void by nailing it to the work deck. This piece of plywood was intended to catch any render that may fall through the void onto workers or finished surfaces below. To Mr Radovanovic’s observation, the renderers usually removed the plywood from the void area when they had completed their work.

Mr Krajisnik’s near miss two to three weeks before the incident

34. Zdravko Krajisnik was another painter engaged by MJM. In the period leading up to the incident he was required to paint the external surfaces of the West Tower from the work platforms. Mr Krajisnik observed the work of a particular renderer in the vicinity of the void in that period. The renderer was from Iran and Mr Krajisnik did not know his name. The renderer was supervised by a man from Iraq, whose name was Ahmad. Mr Krajisnik observed that the render was applied in two coats, a rough coat followed by a smooth coat. After the smooth coat was applied, the renderer would wipe off the excess with a wet sponge. This caused excess render and dirty water to fall down from the rendered surfaces, potentially onto the finished surfaces below. Mr Krajisnik observed the renderer place a piece of plywood on top of the work platform and wedge it against the underside of the balcony to cover the void and stop the excess render and water falling down. The renderer would then usually remove the piece of plywood when he completed his work.

35. About two to three weeks prior to the incident, Mr Krajisnik was working in the vicinity of the void painting the concrete surfaces. At that time a piece of plywood was covering the void. Mr Krajisnik was holding a roller in one hand and a bucket in the other. He stepped onto the piece of plywood and it gave way under his weight. He was able to catch himself by putting his arms over the raised balcony spandrel and holding on. Miro Maric, the MJM supervisor, and Ahmad were close by and came to assist him.

36. Mr Krajisnik suffered some abrasions to his knees and arms from contact with the rough surface of the concrete. He did not report the incident to the Karimbla Safety Officer because he was scared that he may be sent home. He had been sent home on two earlier occasions for failing to wear a hard hat, when it had fallen off during the course of his work. Mr Krajisnik went to the ground level to compose himself. He was moved to another job for a few weeks. He did not return to the site until after the incident.

Mr Hekimian’s concerns in the week preceding the incident

37. During the week of 15-20 February 2016, Mr Hekimian gave evidence that he became concerned as to the extent of the horizontal gaps on the top two levels of the finishing screens and the gap between the top of the work platform and the underside of the concrete slab (the vertical gap). On this issue, I prefer the evidence of Mr Ferrara that the top level of the finishing screens had a horizontal gap of approximately 20 mm and only the middle level of the finishing screens presented the concern expressed by Mr Hekimian.

38. Mr Hekimian thought that persons and/or tools and materials could fall through the gaps, creating a risk to workers on the finishing screens. Mr Hekimian wanted hinged flaps installed on the leading edge of the work platforms on the top two levels, similar to those installed on the bottom level of the finishing screens. Mr Hekimian raised these concerns with Mr Ferrara, who was in charge of the system. Mr Hekimian was told to speak to Mauro Poletti, the director of the defendant. A few days later, Mr Hekimian spoke to Mr Poletti. Mr Poletti told Mr Hekimian that the horizontal and vertical gaps complied with the Australian Standard and that he would not be installing hinged flaps.

39. Mr Hekimian was not satisfied with this response and thought that further measures to protect the workers using the finishing screens were necessary. Accordingly, he sought approval from David Cremona, Karimbla’s Director of Construction, and Mr Sykes to require the workers on the screens to use harnesses attached to static lines installed on the screens. After getting that approval, Mr Hekimian called an extraordinary safety meeting of contractors on Saturday 20 February 2016. At that meeting, Mr Hekimian told the representatives of the relevant subcontractors, that their workers would be required to use harnesses attached by a lanyard to a static line when using the screens. Mr Hekimian arranged to purchase a number of static lines and for external training providers to attend the site to enable any relevant workers to obtain a working at height ticket, if they did not already hold one. Mr Poletti attended that meeting on behalf of the defendant and Mr Maric attended on behalf of MJM.

40. On 20 February 2016 Mr Ferrara noticed the renderers were using a piece of plywood (approximately 800mm x 800mm) to cover the void. On seeing this he became concerned that if it was not removed it could lead to someone stepping onto it and falling through the void.

Events of 22 February 2016

41. At approximately 6:30am on 22 February 2016, Mr Posa was engaged by MJM to perform work at the site as a painter. A short time later, he was sent to Level 27 of the West Tower to assist Mr Radovanovic. Mr Posa was not told that he needed to wear a harness to work from the platforms attached to the finishing screens. Mr Radovanovic told Mr Posa to paint the external concrete surfaces of the West Tower from North to South and then the East. Mr Radovanovic showed Mr Posa where to paint by walking around the slab of Level 27 but he did not go onto the work platforms. The work required Mr Posa to work in a clockwise direction, around the perimeter of the building, on the work platforms on the top level of the finishing screens.

42. When Mr Posa approached the void, he was close to finishing the task he had been assigned. A piece of dark plywood was installed over the void. Mr Posa kicked the board twice to see if it was secure. When the board did not move, he stepped onto the board to paint the column. The board gave way and Mr Posa fell about 6 metres from the top level of the finishing screen on Level 27 to the bottom level of the finishing screens on Level 25. Mr Posa suffered a head laceration, an injury to his shoulder, a fractured wrist and three fractured ribs.

43. Mr Posa was assisted off the work platform on Level 25 and laid on the slab. Ms Magee and Mr Hekimian attended Level 25 to provide first aid to Mr Posa. Mr Posa was taken to hospital by ambulance.

44. At about 10:00am Inspector Barry Sutcliffe, from SafeWork NSW, attended the site. Inspector Sutcliffe spoke to a number of people, made notes, took measurements and took photographs. Inspector Sutcliffe also issued two Improvement Notices to Karimbla relating to the horizontal and vertical gaps. After the incident, Ms Magee also took a number of photographs.

45. All of the photographs taken on the day of the incident demonstrated perspective errors.

46. Inspector Sutcliffe gave evidence that he took the following approximate measurements:

1. the horizontal gap on Level 26 (the middle level of the finishing screens) - 620mm;

2. the vertical gap – 470 mm;

3. on Level 27 (the top level of the finishing screens) - the void measured 800 mm x 500 mm.

47. No photographs were taken of the measurements being taken. The Inspector was adamant that the measurements were approximate measurements only.

48. Ms Magee gave evidence that she was present when Inspector Sutcliffe conducted the measurements of the gaps on the horizontal and vertical gaps and Inspector Sutcliffe said that they were within the limits permitted by the Australian Standard. She also gave evidence that the void, as measured by Inspector Sutcliffe, was approximately 800 mm x 500 mm. Ms Magee did not give any evidence as to her understanding of the requirements of the Australian Standard. I infer from her evidence that she did not know what the requirements were.

49. Mr Recek gave evidence that at an earlier point in time, he had measured the horizontal and vertical gaps to satisfy himself that what he was being told by representatives of the defendant was correct. On his measurements, he believed the gaps complied with the Australian Standard. Again, Mr Recek did not give any evidence as to the requirements of the Australian Standard. I infer that he had some understanding of these requirements at the time.

50. Mr Ferrara gave evidence that the plywood flaps on the bottom level of the finishing screens were cut in a batch to be 450 mm wide. From the photographs it is clear that the flaps when attached to the leading edge of the work platform rested on a diagonal angle against the front edge of the balcony.

51. On the day of the incident Inspector Sutcliffe issued an improvement notice to Karimbla directing it to ensure, so far as reasonably practicable, that a person could not fall from one level to another by repairing any voids or gaps greater than 450 mm x 225 mm between Level 25 and Level 31. Inspector Sutcliffe did not give any evidence as to his understanding of the requirements of any applicable Australian Standard.

Events after the incident

52. By 24 February 2016, the defendant had installed plywood flaps on the leading edge of the work platforms on the middle level of the finishing screens.

53. In addition, the defendant fitted a plank to the top two levels of the finishing screens to fill the void by bolting two pieces of steel C channel to the existing bracket and purlins and then affixing a piece of plywood to the top of the C channel. After the plank was fitted, the gaps around it in the void were minimal. The idea for fitting the plank was devised by Mr Ferrara, Mr Hekimian and Inspector Sutcliffe during their discussions on the day of or the day after the incident.

54. These modifications were made from the materials already used on the work platforms in other areas or were otherwise obtained from a hardware store.

55. After each jump, Karimbla and the defendant adopted a formal hand over process that was documented. This involved a supervisor from the defendant and a Safety Officer from Karimbla walking around each level of the finishing screens to ensure that they were safe for use and signing a document to that effect that was retained by Karimbla. The first jump after the formal handover process was adopted occurred on 26 February 2016.

Findings on the measurement issue

56. Whilst I must exercise some caution in relying on the photographs, because of the perspective error, they do not support the Inspector’s measurement of the horizontal gap at 620mm.

57. I accept the evidence of Mr Ferrara that the hinged flaps installed on the bottom level of the finishing screens and on the middle level after the incident were 450 mm wide. It follows that the horizontal gap they were intended to cover could not have been 620 mm wide.

58. I accept the evidence of Mr Ferrara that the horizontal gap on the top level of the finishing screens was approximately 20 mm and that the horizontal gap on the middle level of the finishing screen was approximately 220 mm.

59. I thought that each of the Safety Officers presented as careful and truthful witnesses. I was particularly impressed with the evidence of Ms Magee and I accept her evidence on the measurement issue that when the gaps were measured on 22 February 2016 by Inspector Sutcliffe that he represented that they were within the limits provided for by the Australian Standard. I was also impressed by the evidence of Mr Recek and I accept that when he had measured the gaps at an earlier point in time he believed that they complied with the Australian Standard.

60. I do not accept Inspector Sutcliffe’s evidence that the vertical gap issued by him was approximately 470 mm. Following on from my acceptance of Mr Ferrara’s evidence that the hinged flap on the bottom level of the finishing screen was 450 mm wide and that the horizontal gap on the middle level of the finishing screens was approximately 220 mm, I would infer by applying Pythagoras’ theorem that the vertical gap did not exceed 300 mm. I would calculate that the vertical distance between the top of the work platform and the top edge of the hinged flap to be approximately 392 mm, assuming the hypotenuse of the right angle triangle to be 450 mm (the width of the hinged flap) and the horizontal gap to be 220 mm. On the assumption that the vertical gap was 225 mm, the vertical distance would be approximately 389 mm. The photographs show the hinged flap on the bottom level of the finishing screens leaning against the face of the building at quite a significant angle. It follows that the vertical gap would be substantially less than the vertical distance calculated by application of Pythagoras’ theorem. I am satisfied that the vertical gap did not exceed 300 mm.

61. The measurement of the void did not involve the same difficulties involved with measuring the horizontal and vertical gaps. Inspector Sutcliffe’s measurements corresponded with the approximate measurements that are apparent from the scale drawing that was Exhibit 7. The measurements of the void were also consistent with Mr Ferrara’s evidence that he saw the renderer using a piece of plywood about 800 mm x 800 mm to cover the void. It is apparent from the near miss of Mr Krajisnik and the incident involving Mr Posa that the void was large enough for a person to fall through. The Inspector’s measurement of the void was corroborated by Ms Magee who was present during the taking of those measurements.

62. Taking into account all of that evidence, I am satisfied beyond reasonable doubt that the void measured approximately 800 mm x 500 mm.

The elements of the offence

63. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence, but for the prosecution to prove its guilt and to prove it beyond reasonable doubt.

64. Section 32 of the Act provides:

A person commits a Category 2 offence if:

(a)   the person has a health and safety duty, and

(b)   the person fails to comply with that duty, and

(c)   the failure exposes an individual to a risk of death or serious injury or illness.

65. The elements of the section 19(1) offence are

Element 1   The defendant was conducting a business or undertaking;

Element 2   The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of;

1. workers engaged by it or workers whose activities are influenced or directed by the defendant;

2. while the workers were at work in the business or undertaking;

Element 3   The defendant failed to comply with its health and safety duty; and

Element 4   The failure exposed an individual to a risk of death or serious injury.

66. The elements of the section 19(2) offence are:

Element 1   The defendant was conducting a business or undertaking;

Element 2   The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of other persons is pot put at risk by the work carried out as part of the business or undertaking;

Element 3   The defendant failed to comply with its health and safety duty; and

Element 4   The failure exposed an individual to a risk of death or serious injury.

The relevant law

67. The offence is one of strict liability: section 12A of the Act.

68. A person is a “worker” if the person carries out work in any capacity for a person conducting a business or undertaking, including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: section 7 of the Act.

69. A duty provided for by the Act is not transferable: section 14 of the Act. More than one person can concurrently have the same duty and each duty holder must comply with that duty to the Standard required: section 16 of the Act.

70. The content of the duty is set out in section 19 of the Act, which relevantly provides:

(1)   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.

(3)   Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a)   the provision and maintenance of a work environment without risks to health and safety, and

(b)   the provision of safe plant and structures, and

(c)   the provision and maintenance of safe systems of work, and

(d)   the safe use, handling and storage of plant, structures and substances, and

…

(f)   the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g)   that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

71. The inclusive list of specific obligations set out in section 19(3) of the Act have each been identified at common law.

71. The requirement to ‘ensure’ means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.

72. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of section 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the section 32 offence is the risk of death or serious injury.

73. The word “risk” is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67].

74. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But, a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6].

75. A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: section 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it or minimise it.

76. “Reasonably practicable” is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters including;

1. the likelihood of the risk concerned occurring, and

2. the degree of harm that might result from the risk, and

3. what the defendant knows or ought reasonably to know about;

1. the risk, and

2. ways of eliminating or minimising the risk, and

4. the availability and suitability of ways to eliminate or minimise the risk, and

5. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.

78. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity, and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].

79. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.

80. The phrase “exposed to risks” contained in section 8(2) Occupational Health and Safety Act 2000 was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess.

81. The section 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].

82. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.

83. The words “reasonably practicable” indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [15], [33] and [38] per French CJ, Gummow, Hayne and Crennan JJ.

84. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.

85. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32].

86. A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from a worker’s negligence in carrying out his or her duties then this is a factor which the duty holder must take into account: Smith v Broken Hill Proprietary Co Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.

87. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].

88. One of the matters PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].

89. Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E.

90. The question of what is reasonably practicable is also a question of fact, depending on the circumstances of each case. The fact that an employee has carried out work carelessly or omitted to take a precaution does not preclude the employer from establishing that everything that was reasonably practicable in the employer’s undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 at 351e-f.

91. Section 275 of the Act provides that an approved code of practice is admissible in proceedings for an offence against the Act as evidence of whether a duty under the Act has been complied with. The Court may have regard to the code as evidence of what was known about a risk or the measures available to control the risk, and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates. Clause 3 of Schedule 4 of the Act provides that an industry code of practice approved and enforced under Part 4 of the Occupational Health and Safety Act 2000 immediately before the repeal of that Act is taken to be an approved code of practice under Part 14 of the Act.

92. Clause 78 Work Health and Safety Regulation 2013 (the Regulations) requires a PCBU at a workplace to manage risks to health and safety associated with a fall of the person from one level to another that is reasonably likely to cause injury. The PCBU must ensure, so far as reasonably practicable, that the work is carried out on the ground or a solid construction. Solid construction means a surface that is structurally capable of supporting all persons and things that may be located on it.

93. If the risk of a fall cannot be eliminated, the PCBU must minimise the risk of a fall by providing adequate protection in accordance with clause 79 of the Regulations. Clause 79 requires the provision of a fall prevention device, or if that is not reasonably practicable, a work positioning system or if neither a fall prevention device nor a work positioning system are reasonably practicable, a fall arrest system.

94. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].

95. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.

96. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130].

consideration

Element 2 – Was Mr Posa a worker within section 19(1) of the Act?

97. The prosecution has laid alternate charges, dependent upon whether or not Mr Posa was a worker for the purposes of section 19(1) of the Act.

98. The section 19(1) duty is owed to persons that can satisfy 3 requirements:

1. they are a ‘worker’ as defined by section 7 of the Act; and

2. either:

1. they have been engaged (or caused to be engaged) by the PCBU; and/or

2. their work is controlled or influenced by the PCBU; and

3. they are at work in the business or undertaking.

99. The term worker is defined in section 7 of the Act, and it should be given its defined meaning when it appears in section 19, unless contrary intention appears: Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049 at [38], per Handley AJ.

100. In section 7, a person is a worker if the person carries out work for a PCBU. The various capacities listed in section 7 relate to the same PCBU, that is, the PCBU for whom the work is carried out. In the present case, Mr Posa was not working for the defendant by using the work platforms attached to the screens. By comparison, he was a worker for Karimbla because he was a subcontractor of MJM who was a contractor to Karimbla and the work was being conducted in furtherance of Karimbla’s business or undertaking.

101. It was not suggested that Mr Posa was engaged or caused to be engaged by the defendant.

102. It can be accepted that Mr Posa’s work was at least influenced by the defendant. By providing the work platforms in the configuration that it did, the defendant was influencing the way that the finishing trades could do their work.

103. The final reference to business or undertaking refers to the business or undertaking of the person using workers in the way contemplated by section 19(1). This requires the workers to be carrying out work for the PCBU and that does not apply to the defendant in this case.

104. For those reasons, I am not satisfied that Mr Posa was a worker as referred to in section 19(1) of the Act.

105. The term “other persons” when used in section 19(2) is a reference to persons other than “workers” who are provided for by section 19(1): SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 and S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5 at [62].

106. For these reasons, I will deal only with the section 19(2) charge from this point on.

Element 3 – Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [10] of the Summons?

107. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37].

108. In order to find Element 3 established I must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take the steps set out in the particulars of breach in [10] of the Summons and that the steps were reasonably practicable.

109. I will now deal with the common matters that are of relevance to the issue of whether the pleaded measures in [10] of the Summons were reasonably practicable.

The pleaded risk

110. The pleaded risk was the risk of persons falling from heights through a void between the work platforms of the finishing screens and the outside structure of the building.

The likelihood of the risk occurring

111. The likelihood of the risk occurring was moderate to high. The concrete column and the balcony returns had to be rendered and painted. This necessitated the renderers and the painters coming into the vicinity of the void on numerous occasions.

112. The renderers and the painters needed to reach about 3.3 metres from the work platform of top finishing screen to the underside of the balcony on the level above to complete their work. The renderers had adopted a practice of covering the void with a piece of plywood to protect finished surfaces on the level below. This practice, which had been observed by Mr Ferrara on 20 February 2016, created a further risk that a worker would step onto the temporary piece of plywood, which was not intended to hold their weight.

The degree of harm

113. The degree of harm that might eventuate if a person fell through the void was significant and included a risk of death.

The defendant’s knowledge of the risk

114. The risk was obvious. The void was a large gap through which a person could fall.

115. Mr Poletti was aware of the need to minimise the gaps and to comply with the Australian Standard. His refusal to comply with Mr Hekimian’s request to install flaps on the leading edge of the middle level of the finishing screens was based on his assertion that the finishing screens, as installed, complied with the requirements of the Australian Standard. As there was some dispute as to the requirements of the relevant Australian Standard, I will return to that issue later.

116. Steps had been taken to prevent the workers falling into the void from the slab by the provision of temporary barriers on the slab, but no protection was afforded to workers who might fall from the work platform into the void.

117. The defendant was given the plans for the West Tower for the purpose of designing the system. The defendant knew or ought to have known about the pleaded risk from that time.

118. The defendant was supplied with design drawings for the system by Sureform. The existence of the void, and the fact that it was not provided for by the work platforms of the finishing screens, was apparent from the design drawings. Exhibit 7 was a scale drawing of the layout of the work platforms on the top level of the finishing screens. The existence and dimensions of the void are clearly depicted on that drawing.

119. The defendant was involved in jumping the screens and inspecting the work platforms after doing so. The defendant had the opportunity to and should have identified the void as a potential hazard from the time the system was installed.

120. Mr Ferrara accepted in his evidence that he was aware of the existence of the void when the progress of the building proceeded past Level 5.

The particulars of breach

121. I will now turn to each of the pleaded particulars set out in [10] of the Summons.

(a)   Conducting and documenting a risk assessment in relation to any risks associated with the existence of a void between the work platforms of the formwork screen and the outside structure of the building, due to the presence of alcoves in the design of the outside structure of the building and consideration of the control measures that should be implemented to control the identified risks;

122. The prosecution tendered the WorkCover NSW Formwork Code of Practice 1998 (the Formwork Code).

123. The Formwork Code was an approved Code under the Occupational Health and Safety Act 2000. Part 3.4 of the Formwork Code provides that a hazard identification risk assessment process should be carried out in the planning and preparation stage of formwork requiring safe systems of work to be put in place to control any risks. Risk assessment and control requires the identification of hazards, assessment of risks arising from those hazards, the use of appropriate control measures to eliminate or reduce the risk and the monitoring and review of control measures to ensure continual safety. The Formwork Code provides that the hierarchy of control measures should be implemented, by first, if reasonably practicable, eliminating the hazard. The Formwork Code also provides a risk assessment check list for use in formwork operations which includes the assessment of the risks of falls from height.

124. The defendant owed a duty pursuant to section 19(2) of the Act to take all reasonably practicable steps to ensure that other persons were not put at risk when they used the work platforms. The defendant was obliged to identify hazards that could give rise to risks to health and safety pursuant to clause 36 of the Regulations and to eliminate or minimise the risk of a fall pursuant to clauses 78-79 of the Regulations. The defendant was also contractually obliged, pursuant to clause 12 of the Subcontractor Agreement, to undertake hazard identification and a risk assessment process. The Formwork Scope of Works contained a similar contractual obligation. The Meriton Minimum Requirements required the system to be monitored regularly to ensure that fall prevention requirements were met. The defendant’s own WHS Management Plan included a section on hazard identification risk assessment and control.

125. Conducting a documented risk assessment at regular intervals was a way of systematically complying with those obligations.

126. The prosecution issued section 155 Notices to the defendant to produce all documents relating to any risk assessments it had performed in relation to the system. The defendant did not produce any pre-incident risk assessments relevant to the pleaded risk. The defendant responded in part to that Notice that it had not identified any uncontrolled or inadequately controlled risk of falls from one level to another between Levels 26 and 27 prior to the incident.

127. Mr Ferrara conceded that he did not conduct and/or document a risk assessment associated with the void. Nor did he undertake an assessment of any necessary control measures to eliminate or minimise the risk of workers falling through the void. When Mr Ferrara checked the bottom level of the finishing screens after the jump was completed he did not use a check list or otherwise document that process.

128. The inspection conducted immediately after the jump provided an opportunity for Mr Ferrara to conduct and document a risk assessment of the work platforms on the finishing screens.

129. Notwithstanding that complaints had been made by Mr Hekimian about the horizontal and vertical gaps, the defendant did not conduct any formal or documented risk assessment to investigate that complaint.

130. The conducting and documenting of a risk assessment was a reasonably practicable measure that could have been implemented by the defendant prior to 22 February 2016. After the incident, the defendant adopted a formal hand-over process which involved its supervisor signing a document to the effect that the finishing screens had been inspected and were safe for use, which was a suitable form of risk assessment.

122. A risk assessment could have been carried out at little or no cost to the defendant, by requiring Mr Ferrara to do so at the time following each jump of the screens. The cost of carrying out and documenting a risk assessment was not grossly disproportionate to the risk.

123. I am satisfied beyond reasonable doubt that the conducting and documenting of a risk assessment was a reasonably practicable measure that the defendant could have taken to identify the void, which presented a risk of a worker falling from one level to another.

(b)   Ensuring that all voids between the work platforms of the formwork screen and the outside structure of the building, due to the presence of alcoves in the design of the outside structure of the building, of greater than 225 mm:

…

(iii)   fitted with a secure, permanent structure that extended from the    working deck; and/or

(iv)   hinged flaps were installed between the working platform and the    outside structure of the building.

133. This part of the pleading is premised on the basis that the applicable Australian Standard required the horizontal gap to be no more than 225 mm or that a horizontal gap not exceeding 225 mm was effective to eliminate the risk of a fall. Inspector Sutcliffe seemed to proceed on the basis that the Australian Standard required the horizontal gap to be no more than 225 mm and the vertical gap to be no more than 450 mm. Mr Poletti, on behalf of the defendant, represented to Mr Hekimian that the gaps corresponded with the requirements of the Australian Standard, because the horizontal gap was less than 225 mm. Mr Hekimian’s evidence on this point was unchallenged.

134. On 7 February 2017 the defendant replied to specific questions posed by the Regulator in a section 155 Notice dated 23 December 2016. The responses were signed on each page by Mr Poletti. The defendant’s responses, in bold, included the following:

34    Pre-incident, at locations with hinged flaps or similar do not butt against the edge of the structure, what was the maximum sized gap tolerated by the company [the defendant] between the edge of the screen deck and the leading edge of the slab?

Refer Karimbla.

(a)   Was this maximum gap agreed to by Poletti and Karimbla?

Refer Karimbla.

(b)   If not, was the disagreement?

N/A

(c)   What Australian, International or similar Standard was this maximum tolerated gap benchmark to?

Refer Karimbla.

135. These answers were reflective of a generally non-co-operative approach to providing proper responses to this section 155 Notice.

136. Section 3.10.1 of AS/NZS1576.1:2010 Scaffolding Part 1: General Requirements (AS1576.1:2010) required the provision of edge protection on a working platform from which a person could fall a distance exceeding two metres. It required a working platform to be placed as close as practicable to the working face of a building to reduce the risk of people or materials falling between the gap of the working face and the working platform. Section 3.10.4.1 of AS1576.1:2010 provides that edge protection may be omitted from a working platform where the horizontal gap does not exceed 225 mm and the vertical gap does not exceed 300 mm.

137. I am satisfied that Inspector Sutcliffe was in error as to his understanding of the requirements of the Australian Standard. It seems to me that he mistakenly believed that the vertical gap could not exceed 450 mm. In fact, in accordance with AS1576.1:2010, the vertical gap was not to exceed 300 mm.

138. The horizontal gap in the vicinity of the void clearly exceeded 225 mm, and this was accepted by Mr Ferrara. Mr Ferrara’s knowledge was gained by him acting in his position as supervisor in charge of the system and it is deemed to be the knowledge of the defendant: section 244(2) of the Act.

139. The defendant contended that the prosecution failed to prove to the requisite standard the applicability of any relevant Australian Standard. I would reject that contention for the following reasons.

140. First, Mr Poletti’s representation to Mr Hekimian that the horizontal gap could not exceed 225 mm in order to comply with the Australian Standard, was an admission made on behalf of the defendant.

141. Second, the defendant was aware of the requirements of AS1576.1:2010 by incorporating its requirements into its WHSMP, referred to at [22] above.

142. Third, the defendant’s section 19(2) duty was to take all reasonably practical steps to ensure that the health and safety of Mr Posa was not put at risk by the work of the defendant. That duty was not necessarily discharged by complying with the requirements of an Australian Standard. Australian Standards have no legal application unless adopted and applied by contract or statutes: MR & RC Smith Pty Limited trading as Ultra Tune (Osborne Park) v Wyatt (No 2) [2012] WASCA 110 at [69] (Ultra Tune). In this case, the defendant was contractually obliged to comply with any relevant Australian Standard. However, the failure to satisfy this contractual obligation does not compel a finding that the defendant failed to comply with its section 19(2) duty: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Limited [2000] NSWIRComm 12. In this case AS 1576.1:2010 was admissible as evidence of the consensus of professional opinion and practical experience as to the existence of the pleaded risk and the existence of precautions to avoid it, namely, to require the working platform to be located as close as practicable to minimise the horizontal gap, and to provide maximum tolerances for the horizontal and vertical gaps: Ultra Tune at [70].

143. I am satisfied that the defendant knew or ought to have known that AS 1576.1:2010 required the horizontal gap to be no more than 225 mm in order to eliminate the risk of a fall.

144. In the course of the final submissions, the prosecutor abandoned sub-particulars (i), (ii) and (v). The sub-particulars pleaded in (iii) and (iv) under particular (b) are in the alternative.

145. As to sub-particular (iii), this was the control measure that was implemented within two days of the incident. The permanent extension to the work platform, in the area of the void, was constructed from materials that were already available or purchased from a hardware store.

146. I am satisfied that Mr Poletti and Mr Ferrara had the requisite knowledge to be able to design the extension to the work platform. The extension to the work platform was completed for a modest cost and the cost was not grossly disproportionate to the risk. The fitting of the permanent extension to the work platform was a way of eliminating the pleaded risk.

147. I am satisfied beyond reasonable doubt that fixing a permanent extension to the work platform in the area of the void was a reasonably practicable measure.

148. As to sub-particular (iv), this was an alternative to the sub-particular (iii) measure, that required fixing a hinged flap to cover the void. This method of covering the void was already utilised on the bottom level of the finishing screens. The hinged flap was constructed of materials already on site or otherwise used in the construction of the system.

149. The installation of a hinged flap was a way of minimising the risk posed by the void. There was a risk that the hinged flap would be left open during the course of the work, at which times the risk of a person falling through the void would still be present.

150. Hinged flaps on the middle and top level of the finishing screens could have been installed for a cost that was not grossly disproportionate to the risk.

151. I am satisfied beyond reasonable doubt that the installation of hinged flap of the top and middle level of the finishing screens was a reasonably practicable measure to minimise the risk.

(c)   Ensuring that workers undertaking finishing trades were not permitted to and did not access the work platform on Level 27 of the formwork screen until the void was made safe or access to the area in the vicinity of the void was fenced off;

152. It is clear from the evidence that the defendant exercised control over access to the work platforms on the finishing screens during the course of the jump process. If the defendant had decided for any reason that the work platforms were not safe to use by the finishing trades, it was open to it to prevent access to the work platforms until they were made safe. This particular pleads that the access to the work platforms on Level 27 should have been denied on the day of the incident. The particular assumes that the defendant should have been aware of the risk presented by the void on the day of the incident or before that date.

153. For the reasons already given, I am satisfied that the defendant should have been aware of the risk posed by the void, in the period after the building proceeded past Level 5 and up to the date of the incident.

154. The defendant’s argument was that it did not have control of the finishing screens after they were handed over to Karimbla. This was mainly based on the premise that the defendant’s workers did not need to use the finishing screens for the purpose of constructing or removing the formwork. I do not accept that argument for the following reasons.

155. First, the defendant contracted with Karimbla to design, supply, install and operate the system. The defendant sub-contracted the design of the system to Sureform, but that did not alleviate its duty to ensure, so far as was reasonably practicable, that the design of the system was fit for the purpose for which it was required by Karimbla. The defendant was contractually obliged to do so. The purpose of the system was to provide edge protection to the workers involved in constructing the West Tower. The system was deficient in providing fall protection to the workers involved in the finishing trades, because of the existence of the void. The void was present and depicted on the design drawings for the system. The defendant conducted a business and held itself out to be competent in the provision of the system. I am satisfied, that in fact, it had that expertise.

156. Second, once the system was installed, in accordance with its design, the existence of the void should have become apparent. The defendant installed and assembled the system on site. The design drawings identified some areas where the defendant would have to cover gaps, made from plywood, on site to suit. The defendant did so on the areas identified in the design drawings. I infer that it had the expertise to do so.

157. Third, the defendant was, from time to time, asked to cover gaps in the mesh used in the system. Some of these gaps were identified in the HSRC safety walk material. I am satisfied the defendant made these alterations to the system at the request of Karimbla because it was contractually obliged to do so.

158. Fourth, the defendant was a specialist contractor for the provision and installation of the system. The evidence was that Karimbla relied on the defendant’s specialist expertise in the design, supply, installation, operation and maintenance of the system.

159. Fifth, Mr Ferrara accepted that no other person on site, besides the defendant, was authorised to add components or to make alterations to the system.

160. Finally, the fact that Karimbla had a concurrent duty to the workers using the finishing screens is irrelevant. It was conceded that the defendant also owed those workers a duty pursuant to section 19(2) of the Act. In those circumstances, section 16 of the Act provides that the defendant was required to comply with its duty to the required standard. The fact that there were discussions between Karimbla and the defendant or approval by Karimbla of the design put forward by the defendant does not demonstrate an inability of the defendant to control the configuration of the work platforms.

161. The defendant had sufficient control over access to the system to prevent workers using the work platforms until they were made safe. It could have used the same processes to exclude workers from the screens that it used during the jump process. Alternatively, it could have simply barricaded the work platforms in the vicinity of the void while remedial works were undertaken. The defendant was only required to exclude the workers until remedial steps could be taken to make the work platforms safe. Those steps were undertaken within two days of the incident, at minimal cost. It follows, the denying of access to the work platforms for one or two days, while remedial works were undertaken, could have been effected at minimal cost to the defendant. I am satisfied that the cost of this measure was not grossly disproportionate to the risk.

162. I am satisfied beyond reasonable doubt that preventing access to the work platforms on Level 27 until the void could be made safe was a reasonably practicable measure to eliminate the risk.

(d)   Ensuring or making arrangements for someone to ensure on behalf of the defendant, that a static line was installed on the work platform on Level 27 of the formwork screen to enable workers to use height safety personal protective equipment, such as a fall restraint/arrest equipment, while performing any work from the work platform of the formwork screens.

163. The installation of static lines was an alternative to modifying the work platforms, which I have dealt with in respect of particular (b).

164. The Formwork Scope of Works contractually obliged the defendant to prevent falls from heights with securely fenced work platforms, or otherwise through the use of harnesses.

165. The installation of static lines was a control measure that was intended to be implemented by Karimbla, in response to the horizontal and vertical gaps. It was clearly a measure that Karimbla was comfortable with. Mr Hekimian, on behalf of Karimbla, made arrangements to purchase a number of static lines that could be installed. Particular (d) only required the defendant to make arrangements with Karimbla to install the static lines. In those circumstances this was a control measure that could have been implemented with no cost to the defendant.

166. I am satisfied that the defendant’s costs in arranging Karimbla to install static lines was not grossly disproportionate to the risk.

167. I am satisfied beyond reasonable doubt that this was a reasonably practicable measure.

Conclusion on Element 3

168. I am satisfied beyond reasonable doubt that the prosecution has established Element 3.

Element 4 - Did the defendant’s breach of duty expose Mr Posa to a risk of death or serious injury?

Causation

169. By the defendant’s established breaches of the section 19(2) duty, it failed to identify the hazard posed by the void, to cover it permanently with an extension to the work platform or alternatively to cover it with a hinged flap extending from the edge of the work platform, to prevent access to the work platform until the void was made safe and to make arrangements to have static lines installed to enable workers to use harnesses as a means of fall prevention.

170. Those failures exposed Mr Posa to a risk of serious injury or death as a result of falling through the void from one level to another.

171. As a result of falling from Level 27 to Level 25, Mr Posa suffered multiple injuries.

172. Mr Posa was exposed to the risk on 22 February 2016 when he was required to work on the work platform in the vicinity of the void.

173. By operation of section 16 of the Act, the failure of Karimbla to identify the void and require the defendant to take remedial steps is not relevant to the defendant’s failure to comply with its section 19(2) duty.

174. The failure of the defendant to cover the void created the risk that workers such as the renderers, would use make-shift methods to do so for the purposes of their work. The fact that a worker installed a piece of plywood over the void that was not securely fastened to the work platform did not sever the chain of causation.

175. I am satisfied beyond reasonable doubt that there was a causal relationship between the defendant’s failures and the pleaded risk to which Mr Posa was exposed.

Conclusion on Element 4

176. I am satisfied beyond reasonable doubt that the prosecutor has proved Element 4.

Conclusion and Orders

177. The prosecution has proved all of the elements of the offence beyond reasonable doubt.

178. I find the defendant guilty.

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Amendments

16 September 2019 - Amendment 16.9.19

Paragraph number [10] entered in heading just about paragraph 113.

29 November 2019 - Paragraph 111 - renders changed to renderers

Paragraph 142 - apply changed to comply

29 November 2019 - corrected paragraph numbering

03 December 2019 - 3 December 2019

Paragraph 9

clause 9.3 amended to read clause 8.3

Decision last updated: 03 December 2019