Inspector Colin Fraser v Formcom Holdings Pty Ltd [2010] NSWIRComm 114 | Case summary

6 Formcom and Mr Karabelas had in place prior to the incident some systems of work designed to address safety issues at the site. To the extent that those systems sought to address the safety of workers at the site, this operates to reduce the objective seriousness of each offence. The systems of work, however, were in other respects, seriously deficient. These matters have been conveniently set out in the statement of facts as follows: Prior to the incident Formcom had prepared a 'Safe Work Method' statement created in April 2006 and revised in June 2006 for the work to be performed by its employees at the premises. This, in part, dealt with the risk of working at heights by requiring experienced trained formworkers to work on leading edges and for exterior and interior scaffolding to be in place. These had been authorised by Mr Karabelas and Tom Karabelas. However, this 'Safe Work Method' statement was inadequate in that it failed to require temporary catch platforms and handrails to be erected where employees were required to work at heights more than 1.8 metres and in particular that such temporary catch platforms be erected not more than 1.8 metres below the formwork deck and be free of penetrations. The system of work adopted by Formcom dealt with the risk of working at heights by requiring experienced trained formworkers to work on leading edges and for exterior and interior scaffolding to be in place. Whilst Formcom utilised experienced trained formworkers when performing work on leading edges and there was exterior scaffolding in place on the premises, it failed to ensure that employees working at heights, less than 2 metres from the leading edge, had adequate fall protection in place, including temporary catch platforms which were not more than 1.8 metres below the formwork deck. Prior to the incident, Formcom had been put on notice about the system of work being utilised at the premises, in relation to the work being performed at heights greater than 1.8 metres from the ground, being unsafe. This notice regarding the system of work for working at heights had arisen from several site inspections conducted by Inspector Fraser prior to the incident. On 10 July 2006, Formcom's employees and subcontractors, in particular Steve Saad, had been observed by Inspector Fraser working on a formwork catch deck with no guard rails. Further Inspector Fraser observed that there were numerous gaps in the deck. The Inspector also noted that there was no safe access to and egress from the area of the deck they were working on. Inspector Fraser raised these safety issues with Formcom's site supervisor, Tom Karabelas. Tom Karabelas subsequently informed Mr Karabelas about the matters raised by Inspector Fraser. On 11 July 2006, Inspector Fraser returned to the premises and observed Mr Saad undertaking duties involving the extending of a new formwork deck at the northwest corner of the premises. At that location the deck was 3.35 metres above the ground floor below. There were no guardrails, no temporary catch platform, and no ladder to the deck upon which Mr Saad was working. Mr Saad was not wearing a safety harness. There was no other fall protection provided for Mr Saad. On 11 July 2006, the Inspector spoke to Formcom's site supervisor, Tom Karabelas. The Inspector notified Tom Karabelas of the unsafe system of work observed in relation to the work being performed by Mr Saad. On 11 July 2006, the Inspector issued a Prohibition Notice (No. 137965) to the principal contractor, Apex, prohibiting them from "allowing persons to be at risk of falling off or through formwork decks". Tom Karabelas was made aware of the terms of the Prohibition notice. Tom Karabelas subsequently informed Mr Karabelas about the matters raised by Inspector Fraser. Formcom failed to ensure that a safe system of work operated in practice in relation to the process of construction of a formwork deck requiring work at heights above 1.8 metres. Whilst experienced trained formworkers were used on leading edges and there was exterior scaffolding, Formcom failed to ensure that employees working at heights, less than 2 metres from the leading edge, had adequate fall protection in place, including temporary catch platforms which were not more than 1.8 metres below the formwork deck. Further, Formcom failed to ensure that any temporary catch platform provided in front of the leading edge of the formwork deck was complete and free from penetrations. Formcom failed to provide adequate information, instruction, training and supervision to its employees in relation to the process of construction of a formwork deck requiring work at a height approximately 7.3 metres at the premises. In particular, Formcom failed to inform its employees that the WorkCover 'Code of practice for Formwork' required temporary catch platforms to be no more than 1.8 metres below a leading edge. Mr Karabelas failed to ensure that the risks of falls from heights was managed appropriately prior to and at the (sic) date of the incident on 19 July 2006. Objective factors 7 There are a number of objective factors which render the offences to which each defendant pleaded guilty very serious. 8 The primary factor relied upon by the prosecutor that led to the risk to safety was the failure of both defendants to ensure that there was adequate fall protection in place for the employees working at heights on the construction of the formwork decks. In particular, the defendants failed to ensure that the internal scaffolding was adequate, by ensuring that temporary catch platforms were not more than 1.8 metres below the formwork decks and were complete and free from penetrations. The temporary catch platform, which had been constructed by Formcom, was about 3.27 metres below where Mr Saad was constructing a formwork deck. It also had a number of penetrations in it, including those immediately below Mr Saad (and through which he fell). 9 Mr Karabelas, in submissions, said that he discussed the Code of Practice with Tom Karabelas. According to him, neither he nor Tom Karabelas knew that the catch platform had to be constructed at a height of 1.8 metres below formwork decks. He said he instructed Tom Karabelas to erect the full intermediate deck to a level of 2.8 metres below the deck which acted as a substitute for the catch scaffolding. 10 Mr Karabelas' submissions, however, do not accord with the evidence. According to the statement of facts (which was tendered by consent), Formcom had been put on notice that the work being performed at heights in excess of 1.8 metres above ground was unsafe. There was no evidence to support the submission concerning the instruction to erect a full intermediate deck, but in any event, no such deck had been constructed below Mr Saab's workplace which would have prevented his fall through the penetration to the ground below. 11 The risk to Mr Saad's safety (a risk of a fall from heights) was both obvious and foreseeable. It was obvious because of the absence of adequate catch scaffolding constructed at the requisite height (no more than 1.8 metres below a leading edge) and the dangers posed by the number of penetrations in the scaffolding. The risk was foreseeable because the defendants were on notice with regard to the unsafe systems of work prevailing at the site which created the risk prior to the incident. 12 The potential consequences of the breach of each offence were gravely serious, as evidenced by the serious injuries sustained by Mr Saad. Mr Saad fell over seven metres landing on a concrete floor narrowly avoiding a number of steel and concrete vertical bars. Given these circumstances, his injuries could well have proved fatal. 13 The installation of simple and readily available measures could also have successfully averted the risk. A requirement that catch scaffolds and handrails be erected at appropriate heights below the workers is one such measure which could have been implemented at the site. 14 Mr Karabelas, in submissions, said that following the issuing of the Notice by WorkCover he and Tom Karabelas closed the gaps in the catch scaffolding. Again, the submission does not accord with the evidence, in particular, with regard to the penetrations in the catch scaffolding through which Mr Saad fell. 15 The statement of facts records that at the time of the incident, Tom Karabelas was working in an area where he could observe Mr Saad at work, yet he took no steps to prevent Mr Saad from working above an open penetration without any adequate fall protection in place. According to Mr Karabelas, Tom Karabelas had no idea where Mr Saad was at that time. This submission is not entirely consistent with the evidence. The statement of facts, as earlier set out, records that Tom Karabelas was in a position to observe the area where Mr Saad was working. Since Mr Saad reported directly to Tom Karabelas, it is reasonable to assume that he was aware of the work being performed by Mr Saad, as well as his location. 16 A number of other safety issues had been raised with the defendants by Inspector Fraser prior to the incident which serve to illustrate the objective seriousness of the offences. On 10 July 2006, Inspector Fraser, after observing Formcom employees, including Mr Saad, working on formwork without guard rails, raised the issue with Tom Karabelas and Apex. The Inspector also noted the absence of safe access to and egress from the area of the deck where the employees were working and also raised this issue with Tom Karabelas and Apex. On 11 July 2006, the following day, Inspector Fraser observed Mr Saad working on a deck 3.55 metres above ground with no guardrails, temporary catch platform or ladder to the deck. Again, Inspector Fraser raised those safety issues with Tom Karabelas and Apex. He issued a Prohibition Notice to Apex which addressed those issues. Incident on 20 July 2006

(v) to inform its employees that the WorkCover 'Code of practice for Formwork' required temporary catch platforms to be no more than 1.8 metres below a work platform. 27 These matters demonstrate that the defendants, for the third time within a relatively short period of time, and in full knowledge of the risk of falling from heights, again exposed an employee to the same risk to safety. The risk to Mr Stewart on 4 August 2006 must have been, by that time, overwhelmingly obvious to the defendants, yet they failed to act effectively to obviate the risk. As at 4 August 2006, there was no temporary catch scaffolding immediately below the edge of the work platform from where Mr Stewart was working and he was not wearing a harness or other fall protection equipment. Both measures could have been implemented by the defendants at any stage before 4 August 2006. This incident demonstrates an even more serious deficiency in Formcom's systems of work in that in this particular case there was no temporary catch platform at all below where Mr Stewart was working. This was so, notwithstanding Formcom's efforts to amend its safe work method statement (SWMS) in late July 1996 to insert a requirement that catch platforms and handrails were to be erected in places where employees were working at heights in excess of 1.8 metres. Deterrence: all offences 28 Given Formcom's consistent course of conduct in exposing Formcom's employees to the risk of falling from heights, general deterrence assumes particular significance. Employers cannot continue to ignore the risks to the safety of workers which are often present at construction sites. This is particularly so in circumstances where, as here, a serious accident has occurred by reason of multiple failures of systems which gave rise to a risk to Mr Saad's safety and, within a relatively short period of time, two other employees at the same site, working on the same project, were separately exposed to the same risk. The present circumstances call for a component of the penalties which sufficiently addresses the necessity for employers to take appropriate steps to ensure that their employees are not exposed to a risk of falling from heights because of a failure to ensure basic protective measures (such as catch platforms installed at the right height) have been put in place. 29 Specific deterrence also assumes particular significance. Following Mr Saad's fall, the defendants took little, if any, practical steps to ensure that effective systems of safety were enforced to prevent the risks associated with Formcom's employees working at heights. The amendment to Formcom's SWMS by the insertion of the requirement that catch platforms and handrails be erected where employees are working at heights in excess of 1.8 metres was of no practical utility because it was not implemented by 4 August 2006, at the time of the incident involving Mr Stewart. So long as both defendants continue to disregard the health and safety of their workers, there must exist the possibility at least of further incidents where Formcom's employees may be exposed to risks to their safety while working at sites in which Formcom is engaged to undertake work. Formcom and Mr Karabelas, the Court was informed, continue to operate in the construction industry. Given these matters, the Court could not be satisfied that the risk of re-offending by either defendant is low. 30 In the case of Mr Karabelas, the Court could be even less satisfied. Less than eighteen months (on 21 April 2005) before the incident involving Mr Saad, Mr Karabelas committed an offence under s 8(1) and s 26(1) of the 2000 Act with similar characteristics to the present offences. It involved an employee of PTV Management Services Pty Ltd, a company of which Mr Karabelas was sole director at that time, who fell some 2.7 metres from the unguarded edge of a formwork deck onto a concrete floor, sustaining serious injuries including a fractured skull and three fractured ribs. No hand rails or fall protection measures were in place at the time of the incident: Inspector Sherras v Interland Constructions Pty Limited & Ors [2008] NSWIRComm 65. Maximum penalties 31 Formcom has no prior convictions and therefore faces a maximum penalty of $550,000 for each offence. Mr Karabelas has one prior conviction and therefore faces a maximum penalty of $82,500 or imprisonment for two years or both for each offence. The prosecutor did not ask the Court to consider imposing a custodial sentence on Mr Karabelas. The Court will therefore proceed to sentence Mr Karabelas by reference only to the maximum fine of $82,500. Subjective factors: all offences 32 The prosecutor accepted that Formcom entered pleas of guilty to all three offences at a relatively early stage in the proceedings, that is, at the third directions hearing. Given this concession, I intend to award a discount of 25 per cent for the utilitarian benefit of the pleas of guilty entered by Formcom. 33 It was also accepted by the prosecutor that Mr Karabelas entered pleas of guilty to two of the three charges at the same time as Formcom. In relation to the first charge (IRC 1090 of 2008), the Court was reminded that Mr Karabelas had initially entered a plea of not guilty but some two to three months later he changed his plea of not guilty to a plea of guilty. In my view, insofar as the "timing of the plea" of guilty to the first charge is concerned, Mr Karabelas entered the plea some considerable time before the hearing date. There would appear to be little appreciable difference in terms of the utilitarian value of this plea from the utilitarian value of the pleas of guilty to the other two charges. I therefore propose to award a discount of 25 per cent of penalty for the pleas of guilty to all three charges, as reflecting the utilitarian benefit derived from those pleas. 34 As a separate consideration from the utilitarian values of the pleas, the defendants are also entitled to leniency in recognition of the remorse shown by the pleas of guilty. The absence of prior convictions in the case of Formcom also entitles it to leniency normally extended to an offender who is not adversely recorded. 35 The defendants also co-operated with WorkCover during the course of its investigations into the offences. Respective culpabilities 36 The prosecutor contended that Mr Karabelas was at least as culpable as Formcom, if not more, in the circumstances of the offences. It was emphasised by the prosecutor that Mr Karabelas negotiated with Apex and signed the contract between Apex and Formcom for the construction of the formwork at the site. Safety issues raised with Tom Karabelas on 10 and 11 July 2006 at the site by Inspector Fraser were, according to the statement of facts, brought to the attention of Mr Karabelas by Tom Karabelas, in relation to which nothing was done. Mr Karabelas was the sole director of Formcom and had day-to-day control of Formcom. 37 Mr Karabelas, in oral submissions, disagreed with the level of control of Formcom's operations attributed to him by the prosecutor. According to Mr Karabelas, he had a "very low level of control of the day-to-day operations of the corporation". He said he did not have "so much control of what was going on at the site", because he was never there, had no means to get there, and relied on his foreman and "other people employed with the company" to inform him accurately about safety matters. 38 It emerged during submissions that Mr Karabelas had lost his driver's licence at some stage prior to the offences. He said that at that time he was, "estimating work and at the same time fighting off legal battles of people that owed me money". He also said that Tom Karabelas had "reported the wrong information to me". He understands that it is his "problem" to manage his own business, "and make sure any safety is up to scratch". He said that if he had had the correct information he would have been able to deal with "the matters". Insofar as safety issues were concerned, he was assured by Tom Karabelas that "we were complying with it". 39 The statements of facts tendered by the prosecutor (by consent) with regard to the three incidents contradict a number of assertions made by Mr Karabelas. The safety issues observed by Inspector Fraser on 10 and 11 July 2006, to which I earlier referred, were brought to the attention of Mr Karabelas by Tom Karabelas. There is no suggestion in the documents that the relevant matters were not accurately brought to his attention. Following the incident involving Mr Saad on 19 July 2006, of which Mr Karabelas was made aware, no steps were taken by Formcom to address the circumstances which gave rise to the risk to Mr Saad's safety. The following day when Inspector Fraser again attended the site, he observed Formcom's employees and sub-contractors working at heights extending formwork decks without any temporary catch platforms at the requisite height below the decks or any other effective risk controls in place. He also observed that nothing was in place to ensure safe access to and egress from the formwork decks. On 21 July, Inspector Fraser issued two Improvement Notices which sought to address the risks. The only measure Formcom appeared to have taken (and Mr Karabelas as its sole director) was to amend the SWMS which had no practical utility because the amendment (a requirement that catch platforms and handrails be erected) was not implemented at the site. It was incumbent upon Mr Karabelas to ensure that effective measures were put in place at the site, particularly after the very serious accident involving Mr Saad. Even after the two further incidents at the site, Formcom and Mr Karabelas had effectively done nothing to address the risk. On 24 October 2006, when Inspector Fraser again visited the site, there was still no safe access to or egress from the formwork decking at the south end of the level seven formwork. Moreover, Inspector Fraser observed a large penetration beside some timber planking on some scaffolding on level six. Directly two metres below this scaffolding was an identical penetration which, in the Inspector's opinion, exposed a person to the risk of falling four metres. There were no barriers or signs restricting access to this area. 40 Those matters, of which Mr Karabelas was, or should have been, aware prior to the offences are strongly suggestive of a conclusion that he was at least as culpable as Formcom in the circumstances of the offences. I so find. Penalty 41 In determining penalties against both defendants, I have taken into account the objective seriousness of the offences, the personal factors, including the absence of prior convictions in Formcom's case, and the prior conviction in the case of Mr Karabelas, by reference to the Crimes (Sentencing Procedure) Act 1999. I have also taken into account the respective culpabilities of both defendants. Totality 42 In relation to Formcom, I consider that a fine in the sum of $100,000 should be imposed for the offence in relation to the first incident; a fine in the sum of $120,000 for the offence in relation to the second incident; and a fine in the sum of $150,000 for the offence in relation to the third incident. 43 In relation to Mr Karabelas, I consider that a fine in the sum of $15,000 should be imposed for the offence in relation to the first incident; a fine in the sum of $18,000 for the offence in relation to the second incident; and a fine in the sum of $22,500 for the offence in relation to the third incident. 44 In order to properly reflect the criminality of Formcom, taking into account the principle of totality, I consider that a total fine for the three offences should be $123,500. 45 In order to properly reflect the criminality of Mr Karabelas, taking into account the principle of totality, I consider that a total fine for the three offences should be $18,500. Orders

Inspector Colin Fraser v Formcom Holdings Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

Parties

Cases Cited (1)

Cited By (3)