Inspector Carmody v Luke Tsougranis

DEFENDANT: Mr P Strickland of counsel SOLICITOR: Mr B Stavropoulos Stavropoulos Solicitors

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

4 September 2003 Matter No. IRC 4365 of 2000 INSPECTOR MARTIN CARMODY v LUKE TSOUGRANIS [No 3] PROSECUTION PURSUANT TO s 16(1) OF OCCUPATIONAL HEALTH AND SAFETY ACT 1983 JUDGMENT 281 [2003] NSWIRComm

1 On 10 April 2003, the Court found the defendant guilty of a breach of s 16(1) of the Occupational Health and Safety Act 1983. (See Inspector Martin Carmody v Luke Tsougranis [No 2] [2003] NSWIRComm 108). The facts giving rise to that charge and the Court's findings are dealt with in detail in that judgment but for present purposes it is sufficient to state that Mr Tsougranis had been engaged as a structural engineer in relation to renovations of a domestic dwelling which had been commenced by the owner/builder. Without professional advice or council approval, the owner/builder had removed much of the rear structure of the building leaving a substantial freestanding wall. During the course of the building work excavation was carried out near the wall and the wall collapsed, killing a building worker and severely injuring the contracted builder. The prosecution case revolved substantially around the inherent instability of the wall and the failure of the defendant, in his structural plans, to give directions requiring the wall to be temporarily supported during construction, especially during periods where there was to be some excavation close to the wall. This judgment deals with the submissions of the parties and the imposition of a penalty having regard to the findings made in the April judgment of the Court. 2 Counsel for the prosecutor and for the defendant helpfully provided written submissions on the question of penalty and supported those submissions with further oral argument. It is not necessary to set out in detail the course adopted in those submissions but they have been fully considered in dealing with the issues which necessarily arise in setting an appropriate penalty for this offence.

3 The prosecutor accepted that the maximum penalty available in this particular case was $55,000. The defendant was a chartered engineer specialising as a structural engineer who at the time of the offence operated his own business as a sole trader. He had no previous relevant convictions. It was submitted that, in considering the objective seriousness of the offence, a Court would consider: (a) that the offence involved obvious and foreseeable risks; (b) that simple steps were available to obviate the risks; (c) the fact that one person died and another was seriously injured; (d) the requirement for the defendant positively to inform himself of safe working conditions; and (e) issues of general and specific deterrence.

4 The potential instability of the wall was foreseeable, had been considered by the defendant but had been discounted by him because of certain assumptions he made about floor levels and the level of excavation to be undertaken. There were simple steps available to support the wall during the construction phase of the project. A note could have been placed on the structural plans advising the builders that no excavation was to take place until further consultation with the defendant concerning the stability of the walls. It was submitted that the defendant's status as a sole trader did not diminish his responsibility to be positively informed of safe working procedures and to recognise his role in the building hierarchy in communicating assumptions, directions and the need to further consult before performing work. In relation to general deterrence, the prosecution submitted that the penalty imposed should communicate to the engineering profession the importance of considering health and safety issues and the preparation of engineering plans. In relation to specific deterrence, the numerous deficiencies demonstrated BY the manner in which the defendant undertook this building project demonstrated the need for this element to be reflected in the penalty.

5 The defence case had concentrated on the culpability of others, namely the owner/builder and the builders who had been contracted to perform the work on site. It was submitted that, although the wall may not have collapsed had the owner builder conducted himself differently, or had the wall been propped by the builders, the defendant's acts and omissions were to a significant, if not total, extent independent of the actions and omissions of others. Having regard to the role of the defendant in the particular circumstances of this case, the acts and omissions of others did not have any significant impact on the seriousness of the offence committed by the defendant. Having regard to the nature of the offence found proved, the Court should find the offence was serious and at the high end of the scale. A penalty, at least, in the range imposed on the owner builder should be imposed having regard to the different subjective features applying in that case.

6 For the defendant, it was pointed out that the Court had found that Mr Tsougranis, in exercising his professional skills in relation to this project, had turned his mind to the stability of the freestanding wall but had made a number of assumptions based on his experience of the vintage of housing being dealt with, which led him to the conclusion that little or no excavation was needed next to the wall and that there was no requirement therefore to brace the wall or otherwise support it. The Court had also held that the alleged breaches were not the direct and immediate cause of the accident and the fatal injuries which were suffered by Mr Zaronias and the severe injuries suffered by Mr Papaianni.

7 The instability of the wall was not due to any action or omission of the defendant but was the direct consequence of the actions taken by the owner/builder Mr Agapiou who had removed or had been responsible for the removal of the surrounding structures. This was the situation when the defendant first came to the premises. The defendant had operated on plans given to him by Mr Agapiou indicating that there would be no reduction in the floor levels and he adopted a design which would have required an excavation to a depth of 100 mm adjacent to the wall but certainly not to 400 mm. It was submitted that the Court did not reject this evidence but there was either a problem with the completeness or accuracy of the information given to the accused.

8 Counsel for the defendant then addressed the issue of parity in sentencing, noting that the owner/builder Mr Agapiou had been fined $22,500 (see Inspector Carmody v George Agapiou [2001] NSWIRComm 268, Kavanagh J), a total fine which represented a discount of 15 per cent for Mr Agapiou's plea of guilty. It was submitted that Mr Tsougranis' fine should reflect the fact that the objective gravity of his offence was less than that of Mr Agapiou and, notwithstanding the discount for the plea which was not available in the present case, should result in an overall fine which is lower than that imposed upon Mr Agapiou.

9 In support of this approach, the following matters were relied upon: (a) Mr Agapiou was the proprietor and had overall control of the two premises in Bourke Street, Redfern; (b) he had constructed the extension at No 728 and did not use framing ties or adequate framing ties to connect the cross walls or to the wall that collapsed, and he was in the best position to know or to be able to find out the relevant facts about the wall including the absence of bonding; (c) the defendant did not know about the earlier renovations at No 728 and he could not reasonably have been expected to ascertain that information if not otherwise told. Mr Smee's expert report stated that the defendant could reasonably assume that the wall was adequately connected and that the foundation was adequate and this evidence was broadly accepted by the Court except where the assumptions were contradicted by the evidence; (d) Mr Agapiou was responsible, as the owner/builder for the demolition work that was carried out between March and May 1998 at the premises. He did not have qualifications to carry out that demolition work and did not consult any professional about the demolition. The expert evidence was that he should have taken advice and he had been told by the architect that he needed council approval for the demolition work, yet Mr Agapiou did nothing; (e) acting as his own demolisher, Mr Agapiou removed existing structures which provided lateral support for the wall. He did not provide any temporary support to the walls such as to leave it in an unstable condition; (f) on sentence, Kavanagh J found that Mr Agapiou: assumed none of his obligations in his activities as a demolisher. He did not ensure he left his premises safe and without risk. There was left in place a serious risk to the safety of any person entering the construction site. The risk to safety was in place because of the activities of the defendant. (g) Mr Agapiou admitted by his plea of guilty that he failed to ensure that the builders and Mr Tsougranis were advised that the wall was not fully bonded and was not a party wall fully bonded into the cross-walls of the adjoining premises. Mr Agapiou was on site at the relevant times; (h) Mr Agapiou admitted by his plea of guilty that he did not instruct the builders to provide bracing or other means to laterally support the rear northern boundary wall before conducting works including any excavation work adjacent to it and further, between 8 May 1998 (when the council approved the building works) and 3 September 1998, he failed to provide any structural detail to the council for the purposes of issuing the building approval.

10 The defendant relied upon the fact that the prosecution against the builder, Mr Papaianni, had been withdrawn. That approach had been taken in WorkCover Authority v McDonald's Australia Ltd (1999) 95 IR 385 at 347, and in a like way it was submitted that the absence of a prosecution of another entity served to emphasise the unfairness that might be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident was not undertaken. The evidence in the case showed that the two builders, Mr Papaianni and Mr Hamilton, took no steps to brace or prop the wall before commencing excavation nor did they seek any advice from Mr Tsougranis in relation to the excavation. They did not investigate the condition of the wall because they did not think it was necessary. Mr Hamilton, in his evidence, stated that during the excavation the sandstone along the foundation wall was exposed and that there was a trench dug adjacent to the sandstone footing of the collapsed wall and that as it was excavated sand collapsed back on to the site. Mr Turner's expert evidence was that the over excavation of the footing trench was a large contributing factor to the collapse of the wall.

11 In relation to subjective matters, four character references were tendered in Mr Tsougranis' case. Those references gave an insight to his character, his long association and work for the Greek Orthodox Church as well as his professional standing. It is clear that he has had to endure the loss of close family members and for a variety of reasons has found his personal circumstances often difficult. It was also clear from the evidence in the proceedings that the fact of the prosecution and associated legal action arising from this building accident meant that Mr Tsougranis has found difficulty in pursuing his professional career because of problems associated with obtaining professional indemnity insurance.

12 Since this accident, Mr Tsougranis had taken steps to improve the information contained in the plans he issues and is said to have improved his practice in relation to communicating with architects, builders and particularly owner/builders. While he remained convinced of his innocence of this charge he had expressed remorse in relation to the death of Mr Zaronias and the serious injury occasioned to Mr Papaianni. In oral submissions, counsel for Mr Tsougranis said that, while it was not proposed to call oral evidence of his financial circumstances and although it was not suggested that he could not make a living or that he could not get insurance, the evidence given during the trial was indicative of his circumstances.

DELIBERATIONS 13 It was accepted by the parties that the primary consideration at this stage of the proceedings is the objective seriousness of the offence. The offence alleged under s 16(1) of the Act, which was found proved, charged that the defendant had not investigated the depth of the base or structural integrity of the footing of the wall; had not made a detailed assessment of the structural integrity of the wall itself; and had not provided any requirement in his design to provide appropriate temporary support for the walls. The evidence called from both parties established that the freestanding wall was unstable if there was to be any significant excavation along the footing.

14 In dealing with a significant conflict in evidence and a number of denials by Mr Tsougranis, the following matters were established by the evidence: (a) Mr Tsougranis had prepared the final structural details for the footings prior to meeting with the builders; (b) those structural plans had been supplied, in some form, to Mr Agapiou prior to the builders meeting with Mr Tsougranis; (c) that the builders had the structural detail for the footing in their possession when they met Mr Tsougranis in his office; (d) Mr Tsougranis was aware that work had begun or was shortly to begin in circumstances where his structural detail for the footings had not yet been certified by the council; and (e) that Mr Tsougranis had informed the builders that, despite the absence of council approval, he would inspect the work to ensure its compliance with his drawings and details.

15 The judgment details, especially at paragraph [205], a number of assumptions that had been made by Mr Tsougranis in drawing his plans, but none of these assumptions were checked or were even noted on the plans. In paragraph [206], it was pointed out that a number of assumptions could have been easily checked including the fact that he could have actually measured the distance between what he regarded as the previous floor level and the ground level of the rear of the site; that he could have asked the architect, the owner/builder, or the builders whether his assumption about the level of the floor at the rear of the property was correct and the fact that, on making these assumptions, it was only four days later that he had spoken to the builders. It was concluded that "opportunity for such discussion abounded".

16 In the context of assessing the seriousness of the offence, the following paragraphs of the judgment are relevant: [210] … Mr Tsougranis' duty was to ensure the safety of persons not his employees, who were working at the site. This was a building site and it was obvious that a number of contractors as well as the builders were likely, from day to day, to be in attendance. Mr Tsougranis could not ensure their safety in relation to this wall by making assumptions, even if they were based upon his professional experience as to the nature of such a wall. This wall was quite large and its surrounding supporting structures had been removed. Mr Tsougranis made assumptions about the depth of its embedment in the soil and its support, assumptions about support for the wall in the adjoining property without checking, and assumed that no excavation was required, but did not ask the owner/builder or the builder about that matter. A wall that had all its surrounding building support removed and relied on embedment in circumstances where he could not be sure that the wall was properly bonded or tied left Mr Tsougranis in a position where he could not ensure that the wall was stable. There was no suggestion that supporting the wall by bracing or propping involved an unwarranted or heavy expense. Indeed, the wall did not have to be braced at all if Mr Tsougranis had placed a note on the plan simply stating that any excavation or trimming of the foundation would impair the stability of the wall. Such a note could have required consultation before work on the footings commenced. [211] This was not a case where, in the exercise of his professional judgment, Mr Tsougranis did not have to consider the stability of the wall. He readily accepted that the erection of another structure near this existing freestanding wall required him to give consideration to the stability of that wall. He had turned his mind to that issue but had satisfied himself on the basis referred to above, that its stability was not a problem. Having applied his mind to the problem and having resolved the issue to his satisfaction based on the various assumptions referred to earlier, Mr Tsougranis in fact failed to ensure the safety of those who might be working on the site during the course of the construction work.

17 Having considered the extensive expert evidence given in the case the following findings were made in paragraph [216]: In light of this expert evidence, I am able to make the following findings:

(a) any design requiring excavation meant that there was a potential risk of undermining an adjoining structure, in this case, the freestanding wall; (b) the wall, once deprived of its surrounding structures, was at risk of being unstable; (c) attendance at the site with the builders when excavation commenced would have shown that the soil in which the wall was embedded was very sandy and was unlikely to provide a high degree of support for the wall; (d) it was appropriate for the defendant to speak to any or all of the owner/builder, the architect, or the builders to satisfy himself that there would be no, or minimal, excavation carried out next to the wall; (e) the defendant could not have been sure of the effectiveness of the steel ties, given the age of the building and the lack of protection against corrosion; (f) it was appropriate for the defendant to inspect the adjoining property and consider the structures at the rear of that property, as it should have raised concerns as to the level of support being provided to the wall; (g) a note in the architectural drawings indicating a change in the floor level at one point of the building should have prompted an inquiry from the defendant as to the desired level of the floor throughout the building, including the rear section.

18 I have considered what has been put on behalf of the defendant. However, it is clear to me that this was a serious breach of the Act. In many respects, the course of the evidence detracts attention from the sheer commonsense of bracing or supporting a large wall which had been deprived of its support.

19 In dealing with the issue of parity, it is appropriate to consider the findings of Kavanagh J in sentencing Mr Agapiou. In summary, the particulars of the breach alleged against the owner/builder was a failure to ensure that the builders and the engineer were advised that the wall was not fully bonded into the cross-wall; that it was not a party wall fully bonded into the cross-wall; that the defendant did not instruct the builders to provide bracing or other means to laterally support the wall prior to conducting works including any excavation works adjacent to it and that the defendant had not maintained the existing building and in particular the rear northern boundary wall in a stable condition in that he did not provide any proper bracing or other means to laterally support it whilst works including excavation works had been and were continuing to be carried out immediately adjacent and parallel to it.

20 In the Agreed Statement of Facts it was stated that the demolition of the previously existing rear section of the premises was carried out by or on behalf of the defendant substantially between March and the beginning of May 1998 and that the defendant had engaged Mr Tsougranis, as an engineer, in or around late May or early July 1998 to provide structural advice, directions and drawings for use by the builders with respect to the conduct of the works specified in the council approved plans and specifications. Her Honour noted that, despite engaging an architectural draughtsman, the defendant determined to do his own demolition work and had removed a substantial structure from the back of the house. Some of the structure which was removed was of a two storey construction. The demolition work carried out by Mr Agapiou left a long boundary wall freestanding without support, and no temporary lateral support was provided to the wall after the demolition was completed. Her Honour noted that the excavation of the new footings for the renovations was carried out alongside the freestanding wall over the weeks before the collapse. This work removed the side support for the wall provided by the soil around the existing sandstone footing of the wall.

21 It is interesting that the owner/builder submitted that consideration had to be given to the defendant's level of culpability for the breach and it was suggested that a number of parties, who by their acts or omissions, contributed to the collapse of the wall. Firstly, it was submitted that the engineer (Mr Tsougranis) had contributed to the collapse of the wall by providing a footing designed without reference to the collapsed wall. The builder was said to contribute to the accident by allowing footings to be excavated without checking the stability of the wall which was freestanding and requiring temporary support. It was also suggested that the council bore some responsibility. The council was said to have had an opportunity to detect the existence of the unstable wall when it conducted "the environmental comment" which was dated April 1998. Following these submissions, her Honour stated: [24] The facts reveal that the defendant had no qualifications nor made any enquiries as to the safety requirements to carry out demolition work. He failed to ensure the wall which he left standing without structural support was not properly braced. He exposed persons on his premises, for the purposes of conducting building work, to risk to their safety … [25] The defendant submits he sought professional advice from the council and from builders and surveyors to assist him as an owner/builder on the construction site. The facts reveal however that he sought no advice related to his activities as a demolisher. The defendant assumed none of his obligations in his activities as a demolisher. He did not ensure he left his premises safe and without risk. There was left in place a serious risk of safety of any person entering this construction site. The risk to safety was in place because of activities of the defendant. There is no evidence before me the defendant was particularly sensitive to and conscious of safety considerations … in his own activities. Whatever actions were taken by the council or other trades on this site, they were acts performed in circumstances where there was no recognition of a pre-existing risk to safety. The defendant by his act or omission created that risk to safety.

22 Her Honour found that the breach reflected an element of "reasonable foreseeability". It was a serious potential risk flowing from the breach. The freestanding wall measuring 6m long x 6.3m high left unattached was a wall which provided a serious risk to safety. Her Honour found the nature and quality of this breach to be "most serious".

23 After allowing a discount of 15 per cent for the utilitarian value of the owner/builder's plea of guilty, consideration was also given to the financial status of the defendant and that Mr Agapiou was now working four days a week as a driver earning $450. These matters appeared to play some role in her Honour finally arriving at a penalty of $22,500. 24 In relation to the application of the parity principle, I repeat the following paragraphs from the judgment in WorkCover Authority of New South Wales (Inspector Dall) v D F McCloy Pty Ltd [2002] NSWIRComm 51: 37. Although D F McCloy Pty Ltd and R & D Enterprises Pty Ltd were not, strictly speaking, charged with the same offence, I believe it is appropriate to treat them as co-offenders and to apply the principles of parity in sentencing when dealing with co-offenders. The offence for each defendant is essentially the same; the charges are brought under different sections of the Occupational Health and Safety Act in recognition of their status in relation to the employees who were performing the work, although the identification of the relevant detriment to safety was largely indistinguishable . It was acknowledged by Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 that: It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same penalty … However, it has also been said that courts should not aim at achieving uniformity of sentence, rather what they should aim at is uniformity of approach (per Lord Lane as cited in R v Bibi (1980) 2 CrimApp R (S) 177 at 179). It has also been said that there is a danger in taking too far the idea of co-offenders receiving the same sentence: that approach may apply if all other things are equal (Doan (Chau Thi Bao) unreported, NSW CCA, 27 September 1996); Steele (Robert Ernest), unreported NSW CCA 17 April, 1977); O'Brien (Edward Paul), unreported NSW CCA, 7 April 1997. 39. It is now clear that parity in sentencing is a matter to be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability. Different criminal histories and custodial patterns may justify a real difference in the time each will serve in prison and like must be compared with like when applying the parity principle (Postiglione v The Queen (1997) 189 CLR 295 (at 303). This approach does not involve apportioning a total penalty as between persons said to be responsible for the occurrence of the accident. In Inspector Carmody v Consolidated Constructions Pty Ltd (2001 109 IR 316), Hungerford J, speaking of the error of that approach, stated: 48. I am of the view that that principle does not require a sharing or apportionment of culpability (and hence of sentence) but rather is designed to ensure that there should not be a marked disparity between sentences given to co - offenders for the offence for which they have been respectively found guilty. As Mason J, as his Honour then was, commented in Lowe v R (1984) 154 CLR 606 at pp 610 - 611): Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community. 49. Brennan J added in that same case (154 CLR at p 617): The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly, the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. 50. In Postiglione v R (1997) 189 CLR 295 at 301, Dawson and Gaudron JJ cited the above comments from Lowe with approval and emphasised that the parity principle was concerned with treating like with like to do equal justice, but 'in the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances'. I see no support in the parity principle, or in sentencing principles generally, which would support the notion suggested here that a sentence should be fixed at a level larger than what it otherwise would have been for the offence because other persons may also have committed an offence in relation to the particular incident.

25 In this case, both general and specific deterrence are taken into account. The expert evidence disclosed the growing practice of including notes on engineering drawings and thereby providing instructions to both owner/builders (where appropriate) and builders. There was evidence presented that Mr Tsougranis was now more widely employing this practice. In relation to specific deterrence, it is clear that Mr Tsougranis proposed to continue in this specialised area of the profession.

26 It would appear that the head sentence imposed by Kavanagh J is between broadly $26,500 and $30,000, presuming that a further discount was allowed beyond the 15 per cent for the utilitarian value of the plea. The involvement of Mr Tsougranis and the involvement of Mr Agapiou is distinctly different. Mr Agaipou knew about the renovations to the adjoining property and the nature of the bonding to the wall that had collapsed and he was intimately involved with the demolition of the supporting structures which left the wall in an unstable state. On the other hand, Mr Tsougranis knew nothing about the adjoining renovation, had been to the work site on only a few occasions and played no role in the demolition of the supporting structures. Mr Agapiou undertook the work in which he was involved as an owner/builder relying on sub-contracted professions and trades. Mr Tsougranis was a professional structural engineer well versed in the nature of these buildings in the Redfern area but undertook his task on a number of assumptions which might have been easily checked which he failed to check. In the case of both defendants, the common feature is that sheer commonsense would require that a substantial freestanding wall which had been deprived of its surrounding support would require some level of temporary support during the construction phase of the project. Although it is tempting to approach this matter on the basis that Mr Tsougranis, as the professionally trained person, should bear greater culpability than the untrained owner/builder, having regard to the obvious danger of this freestanding wall, it is appropriate to conclude that each defendant was culpable to a similar degree. Bearing those considerations in mind, I set a primary penalty of $27,000.

27 In dealing with subjective factors, I accept Mr Tsougranis' expression of contrition as conveyed by his counsel. I am satisfied from the personal references tendered on his behalf that Mr Tsougranis has displayed good citizenship in his involvement with the community and in particular with his church. While there is limited information in relation to his financial position, I am obliged to take into account whatever information is available. The evidence shows that, as a direct result of this accident and associated legal proceedings, Mr Tsougranis' business has been adversely affected and that he had not been able to maintain the same level of business as he had established prior to the accident. Taking all of these matters into account, I would allow a discount of 10 per cent.

ORDERS 1. The defendant is found guilty of the charge laid under s 16(1) of the Occupational Health and Safety Act 1983 in Matter IRC 4365 of 2000. 2. The defendant is fined the sum of $24,300 with moiety thereof to the prosecutor. 3. The defendant is to pay the costs of the prosecutor as agreed or, in the absence of agreement, as directed by the rules or as ordered by the Court.

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