SafeWork NSW v Richard Crookes Constructions Pty Ltd

[2024] NSWDC 584

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Richard Crookes Constructions Pty Ltd [2024] NSWDC 584

Hearing dates:

29 November 2024

Date of orders:

12 December 2024

Decision date:

12 December 2024

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Richard Crookes Constructions Pty Ltd is convicted.

(2)   The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Richard Crookes Constructions Pty Ltd to pay a fine of $150,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Richard Crookes Constructions Pty Ltd to pay the prosecutor’s costs agreed in the amount of $75,000.

Catchwords:

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

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – fall from height – formwork – inadequately covered penetrations – failure to maintain exclusion zones – penetration cover gave way – worker fell through penetration

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

Work Health and Safety Regulation 2017 (NSW) Pt 4

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

SafeWork NSW v G&Z Form Group Pty Ltd [2023] NSWDC 177

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125

WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

Texts Cited:

SafeWork NSW Code of Practice, Construction Work, August 2019

SafeWork NSW Code of Practice, Managing the Risk of Falls at the Workplaces, August 2019

WorkCover NSW Code of Practice, Formwork, 1998

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Richard Crookes Constructions Pty Ltd (Defendant)

Representation:

Counsel:
N Read (Prosecutor)
C Magee (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Holding Redlich (Defendant)

File Number(s):

2022/123155

Publication restriction:

Nil

Judgment

1. The defendant Richard Crookes Constructions Pty Ltd (Richard Crookes) was the principal contractor at an aged-care facility construction site. Richard Crookes engaged subcontractors to undertake formwork at the site. On 29 April 2020 penetrations in the formwork were not adequately covered and Mr Nader Arnaout, a worker, fell through a penetration cover that gave way beneath his feet. Mr Arnaout fell approximately 2.9 metres and sustained serious injuries.

2. Richard Crookes has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed workers, in particular Mr Arnaout to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $1,500,000.

The Risk

4. The risk described in par 12 of Annexure A to the Amended Summons (PX 1 Tab 1) is as follows:

“The risk was the risk of workers, in particular Mr Arnaout, suffering serious injury or death as a result of falling through an inadequately protected penetration in a formwork deck.”

Reasonably Practicable Measures

5. Paragraph 13 of Annexure A to the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the WHS Act as follows:

“The defendant failed to ensure so far as was reasonably practicable, the health and safety of workers, in particular Mr Arnaout, in that it failed to take the following reasonably practicable measures to eliminate the risk to the health and safety of the workers, or alternatively if it was not reasonably practicable to eliminate the risk, to minimise the risk to the health and safety of the workers:

(a) Adequately monitoring and verifying that GNZ:

i. covered penetrations immediately after they were formed by covers that were securely fixed to prevent dislodgment and marked to indicate their purpose as a cover;

ii. established and maintained exclusion zones in areas where formwork activities were taking place, and the formwork decks were not complete, by way of physical barriers, safety tape and warning signs; and

iii. did not direct the crane crew and/or Mr Arnaout to undertake work which involved them/him accessing the formwork decks, in circumstances where the deck had not been adequately inspected by the defendant and/or GNZ, to confirm the steps at 13(a)(i) and (ii) had taken place.”

Background

6. The parties presented an Agreed Statement of Facts (PX 1 Tab 2) and this material is summarised below.

7. Richard Crookes was the principal contractor for the construction of an aged care facility at 169 Forest Way, Belrose NSW (the site). The project was a 102-bed facility across four levels above ground with a lower ground carpark and utilities area. The project involved constructing four separate 600sqm buildings which were to be linked together by bridges (the Project).

8. Richard Crookes engaged a number of workers to manage and oversee the construction work as part of the Project at the site. The Richard Crookes employees included Mr Carl Jones, site manager, and Mr Hamish Kearns, site foreman.

9. Richard Crookes engaged a number of specialist subcontractors to undertake various aspects of the works as part of the Project at the site.

10. Richard Crookes engaged a specialist formwork and steel fixing contractor, G and Z Form Group Pty Ltd (GNZ) to undertake formwork and steel fixing to enable the pouring of concrete slabs, columns and other concrete elements.

11. Richard Crookes engaged Prime Construction Solutions Pty Ltd (Prime) to provide a crew to operate the tower crane at the site. In order for it to undertake the contracted work at the site, Prime engaged:

1. Ahmed Mourad, working director.

2. Bilal Mourad.

3. Nader Arnaout, senior crane operator and dogman.

12. GNZ commenced work at the site on or around 27 February 2020. From this date GNZ installed the formwork for the concrete slabs of the four buildings using conventional formwork erection methods, which involved erecting timber joists and bearers and laying plywood formwork decks.

13. The design of the building required concrete columns to be formed at certain places, including in proximity to the link bridges. This meant that at locations on the respective formwork decks, temporary penetrations were created in the formwork deck to allow for steel columns to be placed from above through the deck and for the creation of formwork for the construction of the columns. Using the conventional system, the size of the penetrations for columns was to be approximately 200mm by 600mm or 200mm by 1000mm.

14. The terms of the contract between Richard Crookes and GNZ included the following requirements:

1. GNZ was to supply, fix and maintain all necessary covers to penetrations and ensure water tightness by means of fabric reinforcement cast into concrete. Ply was to be placed over each penetration, prior to and after the pouring of concrete, or as per Richard Crookes’ directive.

2. GNZ was to provide safety and warning signage for voids and openings.

3. GNZ was to provide directional signage and well-marked access paths through formworking zones, including bunting and adequate safety signage.

4. GNZ was to submit its own safety documents to Richard Crookes for review.

15. Under the terms of the contract Richard Crookes had a right to access the subcontract works at all times without notice to GNZ and to issue a notice of non-conformance to GNZ for any breach of any safety requirement.

16. Pursuant to the agreement in place between Richard Crookes and GNZ, the penetrations created in the conventional formwork decks for installation of the columns were to be protected by GNZ using secured plywood. The penetration covers were meant to be marked with spray paint to indicate the presence of a penetration. The penetration covers were removed in preparation for steel reinforced columns to be installed. Prior to the incident it was common practice for the formworkers to mark up the conventional formwork penetration covers with spray paint.

17. In early April 2020, GNZ commenced using a modular formwork system manufactured by Peri Australia (Peri) called “Skydeck”.

18. Skydeck is a light-weight modular aluminium panel formwork system which can be used for residential or industrial construction projects. It consists of props and square and rectangular shaped panels. The panels are six different sizes, the largest measuring 1500mm by 750mm by 120mm. The panels vary in weight from five kilograms to fifteen kilograms. The panels clip into the erected props to create a formwork deck.

19. On or around 7 April 2020 Richard Crookes revised its Project Risk Report. The Project Risk Report identified the risk of a fall from the Skydeck system arising from the activity of “accessing the deck”. The Project Risk Report identified the control measure as: “ensure Skydeck has been handed over by formworkers and adequate handrail system in place”.

20. Mr Charbel Dagher, the general manager of GNZ said that prior to the incident GNZ was not aware of the Project Risk Report.

21. On or around 1 April 2020 and 6 April 2020, Peri conducted product demonstrations for GNZ workers at the site. On these days Peri also provided training on how to use the system. However, the training did not include training and instruction on methods to be used for securing penetrations, as this was outside the scope of Peri’s supply. Peri provided drawings dealing with the infill areas around the columns, however all necessary componentry (laminated veneer lumber, timber, plywood, etc) for securing any penetrations was to be designed and supplied at the site.

22. The process of installing columns in an area using the Skydeck system differed from the previous areas using conventional formwork, because it involved working with larger penetrations and modular panels of a set size. Once a Skydeck panel was removed it created penetrations up to 1500mm by 750mm in size which required protection until the columns were installed. The penetration remained open for a period to allow installation of the steel column by crane, and shuttering around the column from underneath and from the deck, after completion of the column formwork.

23. From April 2020, on occasions GNZ used unclipped and flipped Skydeck panels as temporary covers for penetrations in areas of the deck where columns were to be installed. The flipped panels were not marked to indicate their purpose as a penetration cover, however GNZ workers were aware that where they saw a flipped panel there was a penetration under it.

24. Where there was a very large penetration, GNZ continued to use conventional penetration covers consisting of H frames and plywood sheets. The flipped panels were used where there was a smaller void, and the panels were usually nailed to the deck corners. However, due to the design of the panels, nails were not completely effective in securing them to the deck. In particular, the panels were fitted with a steel frame which extended approximately two millimetres above the plywood. When the panel was flipped and placed upon a panel (or panels) in the deck, the steel frame of the flipped panel rested on the frame of the adjacent panel. There was a gap of five to six millimetres between the plywood. The flipped Skydeck panels were used to allow the column formwork to be constructed from underneath the deck, and shuttering the penetration with plywood. There is no evidence that GNZ informed Richard Crookes of this practice.

25. The columns were subsequently formed by GNZ formworkers removing the flipped panel/cover and using conventional formwork processes within the penetration.

26. Once the panels were removed, flipped and placed over penetrations by GNZ formworkers, both the upper-level decks and lower-level decks were formwork only areas which ought to have been separated from other trades on site.

27. Areas where formwork activity was occurring on site were generally separated and cordoned off from other trades by GNZ by using barriers (metal balustrades), guard rails and/or safety tape. These areas, where formwork decks were not completed, were not permitted to be used by Prime, the crane operator, for the landing of construction materials, including formwork components.

28. Prior to the incident, the Skydeck system had been used by GNZ on level 1 in between buildings 2 and 3.

29. On or around 27 April 2020, formwork was being constructed by GNZ workers in three different areas of the site, including an area near the level 2 link bridge (the incident area). The Skydeck system was being used.

30. On or around 27 April 2020, GNZ workers laid Skydeck panels to form the link between buildings 2 and 3 at level 2. This included an area where concrete columns were to be subsequently constructed. The deck was fully closed with no gaps or voids. The incident area was able to be accessed via a set of scaffolding stairs adjacent to the deck. The scaffolding stairs were also used by the formworkers to access the level 2 slab to conduct work. The incident area was also accessible by walking across the concrete slab.

31. On the morning of 29 April 2020, Richard Crookes undertook Safe Work Method Statement (SWMS) Monitoring (PX 1 Tab 16) in relation to the works undertaken by GNZ at the site, including in the incident area. This was undertaken by a Richard Crookes Safety Officer, Mr Pere, and by Mr Dagher from GNZ. The Richard Crookes SWMS Monitoring form recorded that the Skydeck system needed to be incorporated into GNZ’s high-risk work SWMS, as the SWMS only dealt with conventional formwork. The form recorded that a resubmission of the SWMS was required. The form recorded that no non-conformances were identified in the inspection, and no non-conformance forms were issued.

32. On 29 April 2020, GNZ formworkers removed panels covering penetrations in the incident area in preparation for installing columns. The workers flipped the panels to cover the penetrations. This must have occurred after the Inspection by Mr Pere and Mr Dagher.

The Incident on 29 April 2020

33. On 29 April 2020, GNZ used unclipped and flipped Skydeck panels as temporary covers for penetrations in areas of the deck where columns were to be installed. The flipped panels were not marked to indicate their purpose as a penetration cover. The flipped Skydeck panels were to be subsequently removed to allow the column formwork to be constructed from underneath the deck and to shutter the penetration with plywood.

34. The removal of the Skydeck panels in the incident area created two penetrations, each measuring 1500mm by 750mm. The penetrations were inadequately covered by flipped Skydeck panels. Each penetration was covered by two flipped panels placed lengthways across the penetration. The flipped panels were not adequately secured to the formwork deck and were not marked to indicate their purpose as a penetration cover. The precise time that the panels were flipped is not known.

35. A yellow timber handrail separated the incident area from an incomplete formwork deck under construction. The purpose of the handrail was to prevent trades, other than authorised formworkers, accessing the incomplete part of the deck, being the leading edge.

36. On 29 April 2020, the Prime crane crew were using the crane to move materials and were assisting with loading materials onto the formwork decks. Richard Crookes permitted GNZ to use the crane to undertake formwork lifts under its broad oversight. The allocated times for using the crane were shown on a schedule on a notice board. Crane lifts could also be coordinated between the crane crew and the foreman in charge or the site manager.

37. At approximately 1.15pm Mr Bilal Mourad was operating the tower crane using the handheld remote. Mr Arnaout was instructed by Mr Kearns, the Richard Crookes site foreman, to unload a truck.

38. On 29 April 2020, a GNZ formworker asked Mr Arnaout to collect a stack of formwork props that had been stripped and to move them to the formwork deck in the incident area on the level 2 link bridge. As at 29 April 2020, the formwork area on the level 2 link bridge had not been verbally handed over to Richard Crookes.

39. Mr Arnaout hooked up the stack of formwork props while on the ground, as requested by the GNZ formworker. Mr Arnaout gave Mr Bilal Mourad the coordinates for where the load was to be landed. Mr Arnaout commenced dogging the load to its intended destination – the incident area.

40. Mr Arnaout walked to the incident area via a set of scaffold stairs which had been erected in the gap between the two buildings under construction. The incident area was also accessible by walking across the concrete slab of level 2. The yellow timber handrail erected by GNZ to prevent access to an incomplete formwork deck under construction, by trades other than the authorised formworkers, did not extend to the incident area, which was not separated from other working areas of the site. There were no barriers preventing access to the incident area, nor signs indicating that formwork was in progress in the area.

41. As Mr Arnaout was attempting to land the load of formwork props in the incident area, he felt something give way underneath his foot. Mr Arnaout fell through a penetration that had been temporarily covered by unsecured flipped Skydeck panels. Mr Arnaout fell approximately 2.9 metres and was impaled through his left shoulder by a steel reinforcing bar.

42. NSW Fire and Rescue attended the site and cut Mr Arnaout free from the reinforcement bar. He was then taken to hospital by ambulance.

43. Mr Arnaout underwent emergency surgery to remove the reinforcement bar. He suffered traumatic injuries to his left shoulder and brachial plexus, right femur, lower back and left musculocutaneous nerve within the coracobrachialis muscle belly. Mr Arnaout underwent further surgery to reconstruct his musculocutaneous nerve with a double Oberlin nerve transfer.

44. Mr Arnaout continues to suffer from neuralgia and numbness in his left shoulder, together with lower back pain. As a result of his injuries Mr Arnaout developed a chronic pain syndrome, post-traumatic stress disorder, and severe levels of depression and anxiety. Mr Arnaout was certified as having no capacity for work from 29 April 2020 to 6 April 2021.

45. On 11 September 2024 Mr Arnaout was certified to have no capacity for any employment for the period 12 September 2024 to 12 December 2024 because of his physical and psychological injuries (PX 2).

Relevant Guidance Material

46. Prior to the incident SafeWork NSW (SafeWork) had published the “Managing the Risk of Falls at Workplaces” Code of Practice (August 2019) (the Code) (PX 1 Tab 17). The Code was available to Richard Crookes before the incident and relevantly provided information on covers and separating “no go” areas using barriers and signs.

46. Prior to the incident SafeWork had also published the “Construction Work” Code of Practice (August 2019) (the Construction Code) (PX 1 Tab 18). The Construction Code relevantly provided:

“Duty holders’ work activities may overlap and interact at particular times. When they share a duty, for example a duty in relation to the health and safety of the same worker or workers, or are involved in the same work, they will be required to consult, cooperate and coordinate activities with each other so far as is reasonably practicable.

Since various contractors and subcontractors work on the same construction site, their activities are likely to overlap and interact with each other. They each have a duty to protect the health and safety of workers and other persons at the workplace and must therefore consult, cooperate and coordinate activities to ensure each person is made aware of what the others are doing, to identify the hazards and risks and decide who is best placed to take action to control the risks.”

48. The Construction Code also stated that the principal contractor must put in place arrangements for ensuring compliance with the duty of managing risks associated with falls. The Construction Code specified that the principal contractor may put in place arrangements for ensuring compliance with such requirements through contractual arrangements, but they cannot rely only on those arrangements to ensure compliance. Rather, the principal contractor must also coordinate, consult with other persons conducting a business or undertaking (PCBUs), such as subcontractors, and check compliance whenever the principal contractor attends the construction site, so far as is reasonably practicable. Alternatively, the principal contractor may directly provide the relevant facilities and procedures.

49. Regarding work areas, the Construction Code provided:

“Work areas should be clearly identified and separated as necessary so work can be undertaken safely. … Signs may be used to provide clear instructions to persons at the construction workplace, for example, ‘No Entry’ … and signs identifying hazard areas.”

50. The WorkCover NSW Code of Practice, “Formwork” (1998) (the Formwork Code) (PX1 Tab 19) was published before the incident and was available to Richard Crookes. The Formwork Code provided that before formwork operations start, the principal contractor in consultation with the contractor carrying out the work should undertake at least the following:

1. A risk assessment of the risks involved in carrying out the work.

2. Identify the most appropriate methods to control any risk of injury, including falls.

3. Provide suitable and safe access to and from the construction site, including each place of work.

4. Ensure that unauthorised persons are prevented from entering the work area. This should include physical barriers and hazard warning signs clearly displayed around formwork activities to warn other persons and trades on site.

Systems of Work Prior to the Incident

51. Prior to the incident Richard Crookes had a Project Management Plan (PMP) which formed part of its Work Health and Safety Management Plan.

52. The PMP stated that Richard Crookes would monitor for hazards in accordance with a “Site Task Checklist” no less than weekly and more frequently if the work areas or activities were changing rapidly.

53. The PMP dealt with the risks associated with working at height generally, however it did not refer to the specific risks associated with penetrations in formwork decks.

54. Prior to the incident Richard Crookes had a documented “Crane Lift Procedure” (PX 1 Tab 9). The Crane Lift Procedure relevantly provided that:

1. Richard Crookes has a duty to ensure the overall coordination of the lifting operations at the workplace where construction work was being performed. This includes ensuring systems are in place to facilitate communications between all subcontractors and workers at the workplace where there are overlapping work areas.

2. The site manager is responsible for ensuring the work involving cranes and lifting equipment is planned and conducted in accordance with the requirements in the Project Risk Report.

55. Prior to work commencing at the site, GNZ provided Richard Crookes with two SWMSs:

1. A non-high-risk SWMS dated 27 February 2020 (PX 1 Tab 10).

2. A high-risk SWMS dated 28 February 2020 (PX 1 Tab 11).

56. Both SWMSs were for conventional formwork, not for a modular system such as the Skydeck system.

57. GNZ’s non-high-risk SWMS identified the risk of falls from heights and noted that “all penetrations shall be secured, covered/barricades and signed as penetrations”. The person responsible for implementing the controls was the GNZ site foreman.

58. The high-risk SWMS was for the work activity of “Formwork and Formwork Stripping”. In respect of the task of erecting formwork frames and installing decks, the high-risk SWMS identified the risk of falls from height and “unsecured penetrations”. The high-risk SWMS specified control measures to reduce the risk, which included:

“Only the team forming the deck are allowed to work without handrail. Handrails or Guardrails shall be installed progressively behind them as the deck is being constructed (providing 2-3m of protection around form workers) and shall remain in place until other fall protection safeguards are implemented. The deck should be closed properly at the end of the working day.

…

Isolate danger zone and area and display warning signs when needed

…

All penetrations shall be secured, covered/barricaded and signed as penetrations.

NOTE: PRINCIPAL CONTRACTOR Penetration procedure all penetration >250x250 or 250 dia. to have mesh cast in”.

59. On or around 1 April 2020 GNZ provided Richard Crookes with a “Method Statement” (PX 1 Tab 13) for the installation of the Skydeck system (Method Statement).

60. The Method Statement included a “risk assessment and safe work procedure” dated 2013. The Risk Assessment component of the Method Statement did not identify or address the risk of a fall through a penetration in the formwork deck but stated that it was to be used in conjunction with the builder/client’s safe method statements and procedures. The Method Statement had been provided by Peri to GNZ as guidance material from the manufacturer for the safe implementation of the formwork system. GNZ did not make any changes to the content of the Method Statement prior to providing it to Richard Crookes.

61. On or around 7 April 2020, Richard Crookes revised its Project Risk Report (PX 1 Tab 15). The Project Risk Report identified the risk of a fall from the Skydeck system when accessing the deck and identified the control as being: “Ensure Skydeck has been handed over by Form workers and adequate handrail system is in place”.

62. Prior to the incident GNZ’s method for covering the larger penetrations in the Skydeck was not adequate. The flipped panels were not adequate as penetration covers as they were not able to be effectively secured to the deck and were not marked to indicate their purpose as a penetration cover.

63. Prior to the incident Richard Crookes did not adequately monitor and verify that GNZ did not direct the crane crew (including Mr Arnaout) to undertake work which involved the crane crew accessing formwork decks in the circumstances where the deck had not been adequately inspected by the defendant and/or GNZ to confirm penetrations were adequately covered.

64. In his Record of Interview with SafeWork, Mr Jones, site manager, said that he was not 100 percent sure whether the incident area had been handed over for use by other trades. Mr Jones said that before the incident he had observed the crane crew drop a couple of bundles of material on the deck through which Mr Arnaout fell.

65. Richard Crookes provided information and instruction to workers on the site, using physical barriers, safety tape and/or warning signs, that they were not to access incomplete formwork decks which were isolated as “formwork only” areas.

Systems of Work After the Incident

66. After the incident, Richard Crookes and GNZ determined to no longer use the Skydeck system and reverted to using conventional formwork for the project. The return to the conventional formwork involved smaller penetrations which were capable of being protected by the available plywood covers.

67. Richard Crookes purchased stencils to be used to identify the existence of penetrations below penetration covers. Richard Crookes also required GNZ to spray paint the penetration covers to alert workers of the penetration and the associated fall hazards.

68. Richard Crookes amended its PMP to incorporate the risk of a fall through a penetration in formwork. The revised PMP provides:

“The risks of fall from height must be managed at all times. The formwork deck is to be completed and all penetrations covered and mechanically fixed and clearly marked ‘penetration’ prior to access or work commencing… In the event structural amendments are required to deck, such as a column to be formed, the penetration must never be left uncovered or unsecured unless a dedicated spotter is in attendance at all times.”

69. Richard Crookes developed the “Richard Crookes Safety Standard #002: Formwork” (Richard Crookes Safety Standard) (PX 1 Tab 23) which set out Richard Crookes’s expectations around covering penetrations. The Richard Crookes Safety Standard provided that all penetrations were to be adequately covered and mechanically fixed at all times. The Richard Crookes Safety Standard identified the person responsible as being the formwork contractor, supervised by Richard Crookes.

70. The Richard Crookes Safety Standard identified the persons responsible for access/egress as being the formwork subcontractor, supervised by Richard Crookes. The Richard Crookes Safety Standard provided that access ways were to be planned, established and maintained based on marked-up agreed plans against formwork design drawings and that areas were to be demarcated using a Richard Crookes or a formworker printed banner mesh, installed and fixed with cable ties. Danger tape was not to be used.

71. GNZ, in consultation with Richard Crookes, developed and implemented a formal and documented deck handover process for both complete and partial decks (PX 1 Tab 24).

72. Richard Crookes increased the number of inspections of penetrations at the site.

73. On 30 April 2020, GNZ revised its SWMS for “Formwork and Formwork Stripping” (PX 1 Tab 25) to incorporate the new deck handover process. In respect of the task of installing the Skydeck system, the SWMS included the following relevant controls:

1. Labourers installing the systems are to follow the Method Statement.

2. All voids and leading edges are to be secured before handing over the deck.

3. All voids are to be secured properly by timber and plywood nailed on top.

4. No loose plywood or panels are to be lifted on top of voids without being nailed.

74. On 1 May 2020, Richard Crookes issued a Risk Report (PX 1 Tab 21) in which it listed the following controls for formwork decks:

“Before accessing Formwork deck ensure that deck has been handed over and has been given approval by Richard Crookes and Formworker. Do not remove penetrations covers at any time – unless made safe and instructed by Richard Crookes and Formworker.”

75. The Risk Report also listed the following controls for Peri Formwork:

“All penetrations are to be secured, barricaded and signed a penetration. [A]rea must be isolated during works and can only be accessed with approval by Richard Crookes and Formworker.”

Evidence for the Defendant

Affidavit of Ms Jonson (DX 1)

76. Ms Tamara Jonson affirmed an affidavit on 14 November 2024. Ms Jonson is Richard Crookes’s “General Manager – Safety”.

77. Counsel for the defendant in his written submissions (MFI 2) summarised the evidence in Ms Jonson’s affidavit. I accept the accuracy of that summary (it was not disputed by counsel for SafeWork) and have used it below to record Ms Jonson’s evidence.

78. Ms Jonson’s affidavit outlined Richard Crookes’s “Group Safety Team” and how it developed safety systems, processes, standards, training and safety culture programs that applied to the work being performed at the time of the incident.

79. In addition to describing the PMP that Richard Crookes implemented before commencing the Project and before the incident, Ms Jonson explained that Richard Crookes had “Site Rules” in place. The Site Rules prescribed that workers must comply with the work health and safety (WHS) requirements in the Site Rules, which included having to be trained in and comply with their company’s SWMS and working in accordance with the Work Health and Safety Regulation 2017 (NSW) Pt 4 requirements when working at heights above two metres.

80. Subcontractors, including GNZ, had to prepare and provide Richard Crookes with a project-specific SWMS prior to commencing at the site. Richard Crookes required GNZ’s SWMS to include control measures to reduce the risk of falls from heights and “unsecured penetrations” when erecting formwork frames and installing decks. Richard Crookes reviewed the SWMS and monitored subcontractors’ compliance with it on site. Ms Jonson said that when non-compliance was identified, Richard Crookes required the subcontractor to rectify it. If a high-risk change was identified, the subcontractor’s SWMS was reviewed and amended.

81. Ms Jonson said that Richard Crookes regularly inspected the incident area and formwork deck to ensure the deck was safe to access and that any penetrations were securely covered and marked.

82. On the morning of the incident Richard Crookes conducted SWMS monitoring of the formwork installation. Ms Jonson said that Richard Crookes identified defects in the way GNZ was applying the SWMS at the time and requested improvements that included GNZ needing to incorporate the Skydeck system into its SWMS and to re-submit the SWMS for approval.

83. Richard Crookes inducted all workers into the site and project specific operations before entering any work area. The induction included verifying each worker’s competencies and tickets.

84. The site manager held compulsory weekly toolbox talks with all workers on site to address safety and environmental hazards in and around the site, and to ensure compliance with SWMSs. Ms Jonson also said that Richard Crookes conducted a monthly whole site risk assessment. Based on each month’s risk assessment a Project Risk Report was issued to subcontractors in accordance with the PMP.

85. Richard Crookes had its own system of developing and issuing Safety Alerts for relevant serious near miss incidents and injuries following investigations. The Safety Alerts were distributed across projects, posted on notice boards, and discussed at team meetings.

86. A Safety Alert dealing with the incident is at PX 1 Tab 22. The findings recorded in that Safety Alert were:

1. There was a lack of supervision in identifying that the formwork deck was incomplete.

2. There was no process for the formworker to hand over the deck to Richard Crookes for inspection prior to other trades accessing the area.

3. No clear methodology was in place defining how penetrations would be identified and secured to the Peri system.

4. The formworker was inexperienced in the Peri system as this was their first project using it.

5. The high-risk work SWMS did not identify the use of the Peri system and its associated risks and controls.

87. Ms Jonson said that before the incident Richard Crookes did not know about GNZ’s practice of flipping the Skydeck panels to cover penetrations and that GNZ’s practice was not in accordance with Richard Crookes’s policies. Ms Jonson was briefly cross-examined. Ms Jonson did not speak to Mr Pere or to Mr Tehan (project manager). She could not say whether those two supervisors knew that the formworkers were flipping panels prior to the day of the incident.

Steps Taken After the Incident

88. Following the incident Richard Crookes required GNZ to stop work until the area was safe. Richard Crookes also required GNZ to update its SWMS to address working around penetrations, provide additional supervision support at the site, and develop a “deck handover document”.

89. GNZ provided Richard Crookes with its revised “Formwork and Formstripping” SWMS which incorporated the new deck handover process and implemented controls for the installation of the Skydeck system.

90. Richard Crookes issued a new risk report that included additional controls for formwork decks, including removing penetration covers and isolating decks with penetrations. Richard Crookes also reviewed the methodology used by GNZ and decided to return to using the conventional formwork system with a revised system of pre-cutting joists to the correct size and infilling penetrations from underneath to eliminate the risk of falls from height.

91. To further prevent falls from heights Richard Crookes purchased stencils to identify penetrations below penetration covers. GNZ was required to spray paint the penetration covers to indicate the existence of the penetration and associated hazards.

92. Richard Crookes developed the Safety Standard (PX 1, Tab 23) which includes expectations for covering penetrations. The Safety Standard provides that all penetrations must be adequately covered and mechanically fixed at all times. The Safety Standard identified the responsible person as the formwork contractor, supervised by Richard Crookes.

93. Richard Crookes and GNZ consulted to develop and implement a formal and documented deck handover process for complete and partial decks. Richard Crookes also increased the number of inspections of penetrations at the site.

Ongoing Actions to Improve Safety

94. Ms Jonson said that Richard Crookes has invested and continues to invest in resources to ensure that its WHS systems are comprehensive and effective in eliminating safety risks at its projects.

95. Ms Jonson’s affidavit detailed the steps Richard Crookes has taken to implement safety cultural changes. These included actions and initiatives arising from consideration of the incident. Some examples include:

1. Developing a “WHS Business Plan & Strategy”.

2. A business-wide safety culture roadshow and survey that was conducted across 38 projects.

3. Implementing a “high potential incident” (HPI) lead indicator and a revised HPI Reporting Protocol.

4. Establishing “Richard Crookes Safety Standards” working groups.

5. Training safety professionals in “Incident Cause Analysis Method” (ICAM) investigations for use on near misses and HPIs.

6. Implementing a senior management monthly group safety leadership forum to discuss safety incidents, actions and cultural initiatives.

7. Operational executives and managers conducting 176 “Safety leadership inspections”.

96. Ms Jonson’s affidavit also listed various safety policies, platforms, protocols, and committees that Richard Crookes has created or changed.

Compliance History

97. Ms Jonson said that Richard Crookes has been operating for over 48 years in a high-risk industry and has an excellent history of compliance with its WHS obligations. Ms Jonson said that Richard Crookes continues taking proactive steps to ensure compliance with WHS obligations and that Richard Crookes and its Directors are committed to continuous and lasting improvement to WHS.

Contribution to the Community

98. Ms Jonson said that Richard Crookes recognises the seriousness of the risk of falling from heights in the construction industry.

99. On 12 April 2023 Richard Crookes held a “Formwork Safety Commitment Forum” with the 16 formwork companies that were operating across Richard Crookes projects at that time. Richard Crookes invited owners and leaders of those companies to collaborate to come up with an action plan to eliminate incidents and injuries related to formwork.

100. On 23 March 2023 Richard Crookes held another “Safety Commitment” forum with over 180 Richard Crookes leaders in attendance, including the Richard Crookes board, executive team, general managers, project managers, site managers, and safety team. This forum included:

1. A review of Richard Crookes’s “safety performance”.

2. A “mock trial”.

3. A talk by Dallas Addams on the cost of losing his father and brother to a workplace accident.

4. A “call to arms” from Richard Crookes’ managing director on the business’s leaders recommitting to safety being the number one priority, ahead of profit or program.

101. Richard Crookes is also committed to facilitating access to education by providing scholarships to the University of Newcastle, the University of Technology, Sydney, and the Richard Crookes Cadet Program.

Affidavit of Mr Dagher (DX 2)

102. Richard Crookes tendered the affidavit of Mr Dagher affirmed on 4 May 2023. Mr Dagher is the General Manager of GNZ. Mr Dagher’s responsibility at the site included monitoring the project’s progress and monitoring the activities of formworkers and supervisors. Mr Dagher also oversees GNZ’s policies and compliance, including ensuring that GNZ’s employees adhere to the WHS policies.

103. Mr Dagher’s affidavit explains that GNZ used conventional formwork at the beginning of the project in February 2020. In April 2020 Mr Dagher was told about the Skydeck system. He said that he was told the Skydeck system was “a safer option”.

104. Mr Dagher said that the Skydeck system was something that Richard Crookes wanted to use and that they “pushed” for GNZ to use it. Mr Dagher said that the Skydeck system was more expensive for GNZ to use.

105. On or around 2 April 2020, a representative of Peri attended the site to provide training on the use and operation of the Skydeck equipment. After the initial training, Peri representatives visited the site approximately four to six times to observe the equipment being used, to ensure it was being used properly, and to answer any questions.

106. On the day of the incident Mr Dagher was supervising at the site and attended a safety walk approximately one hour before the incident. Mr Dagher said that he did not notice any flipped and unsecured Skydeck panels in the incident area.

Consideration

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

Objective Seriousness of the Offence

108. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

109. The task requires the cCourt to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

110. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

111. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

112. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

113. The Court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

114. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

115. Further at [42] his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

116. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

117. My findings about the defendant’s level of culpability are based upon the following:

1. The risk of a fall through a penetration was actually known by the offender.

2. The likelihood of the risk occurring was not insignificant. GNZ formworkers had been using flipped Skydeck panels to cover penetrations before the day of the incident.

3. The potential consequences of the risk were death or serious injury.

4. There were steps available to eliminate or minimise the risk.

5. There was no particular burden or inconvenience to implement those steps.

6. Mr Arnaout suffered a serious injury and has been left unable to work.

7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

8. The failure of Richard Crookes was largely a failure to monitor and verify that GNZ was complying with its safety obligations. The failures of GNZ were more significant than those of Richard Crookes.

118. I find that the level of culpability of Richard Crookes is in the mid range.

Deterrence

119. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

120. The penalty must reflect the need for specific deterrence. Richard Crookes is still conducting a business. Its operations involve leading construction projects and the continuing engagement of workers.

Aggravating Factors

121. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.

Mitigating Factors

122. Richard Crookes does not have a significant record of previous convictions: s 21A(3)(e) CSP Act. Given that it is a large business which has operated for decades, this factor alone will reduce the penalty from what it otherwise might have been.

123. Richard Crookes is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Richard Crookes has been in business for approximately 48 years.

124. Richard Crookes is unlikely to re-offend: s 21A(3)(g) CSP Act.

125. Richard Crookes has good prospects of rehabilitation: s 21A(3)(h) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

126. Richard Crookes has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Arnaout was caused by its actions.

127. Richard Crookes entered a plea of guilty: s 21A(3)(k) CSP Act. The Court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) CSP Act. It is appropriate to give Richard Crookes a 25% discount for an early plea.

128. Richard Crookes gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Parity

129. GNZ was also prosecuted for a breach of its health and safety duties arising under the WHS Act, relating to the same incident in which Mr Arnaout was injured: SafeWork NSW v G&Z Form Group Pty Ltd [2023] NSWDC 177. Judge Scotting found that the appropriate fine was $240,00 which was reduced by 25% to reflect the plea of guilty. His Honour further reduced the fine by reason of a limited capacity to pay.

130. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences; the parity principle is not limited to persons charged with the same offences arising out of the same criminal conduct. Its application is governed by consideration of substance over form: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].

131. The principle operates in the nature of a “check” required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said:

“An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence.”

132. The Court should not use a co-offender’s sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

133. It is appropriate for the Court to consider the respective contributions of GNZ and Richard Crookes. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].

134. I find that Richard Crookes was less culpable than GNZ. The failure of Richard Crookes was a failure to monitor and verify that GNZ was complying with its safety obligations. The failures of GNZ were more significant and direct than those of Richard Crookes.

Capacity to Pay a Fine

135. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it 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: Mahdi Jahandideh v The Queen [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.

136. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

137. There was no submission about capacity to pay, so this issue does not arise.

Costs

138. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs of $75,000.

Penalty

139. My orders are:

1. Richard Crookes Constructions Pty Ltd is convicted.

2. The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Richard Crookes Constructions Pty Ltd to pay a fine of $150,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Richard Crookes Constructions Pty Ltd to pay the prosecutor’s costs agreed in the amount of $75,000.

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Decision last updated: 12 December 2024