Sentence: Ourarchi Pty Ltd convicted and fined $390,000; 6AAA: convicted and fined $520,000.
[2]
Ourarchi Pty Ltd (ACN 607 975 002) ('Ourarchi'), by its authorised representative Ying Zhou has pleaded guilty to one charge of failure of a person who has management or control to ensure a workplace is safe and without risks to health (Charge 1) and one charge of failing to preserve the worksite where an incident has occurred (Charge 2).
[3]
Ourarchi is a registered Australian company. Mr Zhou is its sole director.
On 8 February 2019 Ourarchi was engaged to manage the construction of a residence at 6 Sunny Rise, Templestowe ('the workplace').
Manningham City Council issued a building permit to Ourarchi on 5 February 2019. Ourarchi then engaged various tradespersons to complete the work.
Work commenced in March 2019 and during that month Mr Zhou hired Huck Chan Ooi along with Wen Jun Chong, Bo Wang and Jung Chen as labourers. They assisted Mr Zhou with various tasks including window framing. Mr Zhou also hired carpenter Roberto Cini and his apprentice Dylan Cauchi to construct the building's frame.
As construction progressed, Mr Zhou arranged for a lightweight scaffolding system to be erected to allow for work at a height in the building's internal courtyard.
On the morning of 27 April 2020 a delivery of glass arrived for the windows. Messrs Chen, Wang and Chong set about installing the glass into frames adjacent to the courtyard.
By about 12 noon a number of wooden planks had been removed from the first floor of the scaffold, seemingly to create a gap to make it easier to lift glass panes from the ground floor to the first floor.
At about 1.30 pm, Mr Ooi was on the first floor scaffold helping to install some panes of glass. He used the gap to assist in manipulating glass panes into place while Messrs Chen and Chong installed them on the ground floor.
While doing so, Mr Ooi was seen to run along a part of the scaffold, perhaps to fetch a tool. As he moved over the planks of timber, a plank fell down and he lost his footing, falling into a concrete trench, about 2 metres below.
Having heard a bang, Mr Cini ran over and found Mr Ooi in the trench. He was bleeding and not responsive.
Someone called an ambulance, which attended and took Mr Ooi to hospital.
By the time the ambulance had departed the worksite, someone had cleaned the courtyard scene of any blood.
Two days later, 29 April 2020, Victoria Police notified WorkSafe inspector Steven Peters about Mr Ooi's life threatening injuries and that life support was due to be withdrawn that night.
Mr Peters searched the WorkSafe database but there was no record of any prior report of the incident. The parties agree that there had in fact been no report to Worksafe as was required.
The next day, 30 April 2020, WorkSafe senior investigator Graham Muscat inspected the worksite. He spoke with Mr Cini, who said that the scaffold was different to the state it was then in, comparing it to the day of the incident.
The applicable standards for scaffold construction are documented in the Australian Standard No.1576.1 of 2019 ' Scaffolding'.
The parties agree that at the time of the fall the scaffold was deficient due to a failure to have in place kickboards, rails or 'proper decking' material on the above-ground scaffolding. The failure of the decking was that it was not fixed or tied down, such that it could move, as it did when Mr Ooi fell (Charge 1).
Ourarchi was responsible for reporting such incidents to WorkSafe immediately and, in respect of Charge 2, to maintain the scene until inspectors arrived. This was not done.
Mr Ooi Huck Kee, the deceased's brother, provided a victim impact statement to the court dated 14 April 2023 (Exhibit A). He stated that the shock and sorrow he has felt since his brother's death is intense. His family life has been severely affected. Festive times like Chinese New Year and Christmas are painful and accepting social invitations are a reminder that he is alive while his brother is not. Mr Ooi's mother spends days sitting idle, in despair. Since her son's death she has trouble sleeping, has lost weight and requires greater financial and physical care and support, a responsibility previously shared between both brothers.
There is little that can be said in a case such as this that is likely to provide much comfort for the family. In any case, I am grateful to Mr Ooi for his candour and courage in helping the Court understand the impact this terrible incident has had.
[4]
It took the Authority two years to charge Ourarchi. That occurred on 14 April 2022.
Ourarchi offered to plead guilty, after another five months, at an early stage in the proceeding. It has since taken another eight months to progress the matter to sentence. These delays are unfortunate for all concerned.
Counsel for Ourarchi, Ms Keating, submitted that the guilty plea is indicative of remorse on the company's part. I have received no material from or about Ourarchi or from its sole director or about Mr Zhou on the company's behalf about the attitude taken to the incident, the victim, or measures it has taken to ensure the safety of future work it or its directors or employees undertake. In those circumstances, I am not satisfied on balance that the plea is attended with any significant remorse.
Ms Keating submitted that the plea is a significant one, due to the shortfalls in the evidence about the state of the scaffolding on the day. So much cannot be accepted in relation to Charge 2, where the evidence is clear.
As for Charge 1, I find that the evidence is far from weak. There was direct observation of the falling plank at the time of the fall; within three days the site was inspected and the scaffolding found to be wanting. Any suggestion that during those days, following a fatal incident, something may have been done to the scaffold to make it less compliant with standards than was observed by the inspector, may be seen as somewhat difficult to accept. I am not satisfied that the plea is significant in the Doran[1] sense.
[5]
The maximum penalty for Charge 1 is 9000 penalty units (a penalty unit at the time of the offence was $165.22). When Charge 1 is committed by a body corporate, the maximum penalty equates to $1,486,980. The maximum penalty for Charge 2 is 1200 penalty units for a body corporate, equating to $198,264.
The Occupational Health and Safety Act2004 (the Act) imposes a number of duties on people involved in work and workplaces. Both charges in this case involve examples of such duties. Those duties are to be interpreted in the light of the objects of the Act in section 2(1) and the 'principles of health and safety protection' set out in section 4.
Of particular relevance here is the principle that:
[6]
'Persons who control or manage matters that give rise or may give rise to risks to health and safety are responsible for eliminating or reducing those risks so far as reasonably practicable'.
[7]
In the case of Frewstal the Court of Appeal laid down principles for guidance when applying relevant sentencing principles in prosecutions brought under this Act_.[2]_
Accordingly, the gravity of the breach in Charge 1 here is to be assessed first by having regard to the nature of the failure to take all reasonably practicable steps; second, the likelihood of such a risk materialising; and, third, the consequences if it did.
The fact in this case that Mr Ooi died is relevant in assessing the third factor; however, 'the touchstone for sentencing is the gravity of the breach of the Act, not the gravity of the consequence'.[3]
So in compliance with principle, while the notorious risk of falls from scaffolding is a relevant matter, Mr Ooi's death is not to be treated as an aggravating feature of the offence.
On Charge 1, Ms Keating submitted that the state of the evidence, given that inspectors arrived three days later, during which time the site had not been preserved, does not provide details from which the seriousness of the Ourarchi's failure could reasonably be inferred. The prosecutor submitted that the failure admitted in the plea, that is, to ensure secure planks on decking, kickboards and railing, is a frank departure from standards.
I find that the failure to ensure safe scaffolding is clear. Without finding that the falling plank necessarily caused Mr Ooi's fall, the failure to secure decking, resulting in it being unstable and prone to lift or fall during use, is a serious departure from what might be regarded as the minimum reasonably practicable steps that could have been taken. Such a failure goes the core of the purpose of such scaffolding. The admitted absence of kickboards and railing only adds to the seriousness of the failure with regards to the decking.
I accept also that the risk of falls from height on a building site are notorious. The applicable standards for the construction of scaffolding are well known, they are documented and readily available. The necessity for kickboards and rails on decking more than 2 metres above ground is demonstrative of that risk.
The nature of the consequences that such measures are directed to prevent is of the most serious kind. People who fall, even from about 2 metres, are at risk of serious injury and death, as indeed occurred here.
I accept that the provision of scaffolding at all represented partial compliance with the obligation to do what was reasonably practicable. However, the inadequacies of it were serious. Unsecured decking creates a high likelihood of risk to workers using the scaffold. The degree of harm that risk entails, including death, is of the highest kind. Ourarchi clearly knew of the need for scaffolding, that it was available and that the costs were not prohibitive.
Accordingly, I find the gravity of the breach in Charge 1 to be significant. The culpability of Ourarchi, in whom these important obligations under the Act resided, is high.
The breach alleged in Charge 2 is clear cut. The failure to preserve the incident site is readily apparent. This is an important duty under Victoria's scheme for ensuring the safety of workers and here it was simply disregarded.
Ms Keating submitted that this failure was inadvertent and ignorant rather than deliberate. The prosecutor does not submit that this failure was intentional, but neither is there evidence that satisfies me on balance that it was inadvertent. As for Ourarchi being ignorant of its obligations under the Act, this would be regarded as a very serious kind of breach.
Ourarchi is taken to have been in actual control of the site at all relevant times. If it were to be suggested that Ourarchi was simply not aware of what was being done at the site with respect to the incident or the site being preserved this does not reduce culpability. I find Ourarchi's culpability for the offending in Charge 2 to be high.
Securing workers' health and safety and eliminating or reducing risks so far as is reasonably practicable must be of paramount concern to all who have the management and control of workplaces. This is particularly the case where the potential risks to health and safety include the risk of death or serious injury, as was the case here.
The prosecutor and defence counsel agreed that the following cases may be considered when determining current sentencing practice, albeit they entail distinguishing features.
In Seascape[4] a contractor fell from an unprotected ledge to his death at a height of about 3.1 metres. The accused in that case was on notice about the risk but took no steps to reduce it. The fine was $420,000.
In Montague[5] a subcontractor fell to his death from about 7.4 metres through a corroded roof with no walkways, mesh, anchor points or safety railings. The court fined the company, who had a prior conviction, $380,000.
In Concorp[6] the risk of fall related to a platform inside a riser shaft that was inadequate and that fact was brought to the company's attention. A worker then fell to his death from it, from about 11 to 12 metres. Concorp was fined $650,000.
No two cases are in all respects the same and, while I have taken some guidance from these, I have weighed up all the factors individual to this case.
I sentence Ourarchi Pty Ltd, for whom Mr Zhou is the authorised representative, as follows:
[8]
(a) On Charge 1, failing to ensure a safe workplace - $370,000;
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> (b) On Charge 2, failing to preserve the site of an incident - $20,000;
[9]
Those fines are imposed with conviction.
I indicate that but for your company's guilty plea, under s6AAA of the Sentencing Act, I would have imposed a total fine of $520,000.