Objective factors
9There are a number of objective factors which compel the conclusion that the offences are objectively very serious.
10At the time of the first incident, both the defendant and George Karam were on site. Before the incident, the defendant had been put on notice of unsafe systems of work being employed by its sub-contractors at the site, in particular, Formcom. This notice had arisen from several site inspections conducted by the prosecutor prior to the incident, with particular emphasis on the manner in which work was being performed at height. These site inspections, in the order in which they occurred, are considered below.
11On 10 July 2006, the prosecutor visited the site and observed Formcom's employees including Mr Saad, and other sub-contractors working on formwork catch deck which lacked guard rails. Upon closer inspection, the prosecutor observed numerous gaps in the catch deck and the lack of a safe access to and egress from the catch deck. These safety issues were raised by the prosecutor with the defendant and George Karam.
12The prosecutor returned to the site the following day, 11 July 2006. He observed Mr Saad working on formwork deck 3.35 metres above ground with no guard rails, no temporary catch platform installed, and no ladder for access to the deck. Nor was Mr Saad wearing a safety harness or other form of fall protection at that time. The prosecutor raised his concerns about the unsafe system of work being utilised by Mr Saad with George Karam. A Prohibition Notice was also issued on that day to Apex's contract manager, Justin Fletcher, prohibiting Apex from, "allowing persons to be at risk of falling off or through formwork decks".
13Two days later, on 13 July 2006, the prosecutor returned to the site and observed that the catch deck, the subject of the Prohibition Notice issued on 11 July 2006, still had no guard rails on most of its edges and there was no temporary catch platform below the landing edge of the catch deck. These omissions suggested that little, if any, steps had been taken by 13 July 2006 to address the safety matters set out in the Prohibition Notice of 11 July 2006. That Notice expressly referred to an immediate risk to the health and safety of "any person" by, "allowing persons to be at risk of falling off or through formwork decks". The Notice set out the reasons for its issue, namely:
Form work deck on which persons were working lacked edge protection and safe access and had gaps greater than 290mm in width through which persons could fall or trip.
14The Notice also directed that certain measures be taken to avert the risk. These were:
Other than is strictly necessary to render the area safe, no person must be allowed on the formwork deck unless and until it has been made safe so that the risk of injury from falling is controlled to the full extent that is reasonably practicable.
15Apex had also failed to require Formcom to provide it with an adequate Safe Work Method Statement (SWMS) for the construction of formwork at height. Although Formcom had earlier provided to Apex a SWMS, which it had approved, the SWMS failed to require temporary catch platforms and the erection of handrails for the use of workers working at heights in excess of 1.8 metres, and in particular, it failed to provide for temporary catch platforms to be erected not more than 1.8 metres below the formwork deck, and to be free of penetrations.
16These site inspections, which put the defendant directly on notice of the unsafe practices, and the directions to Apex to remedy those unsafe practices occurring at the site (which were largely ignored) exacerbate the objective seriousness of the conduct. Although the defendant had been put on notice of the risk and of the unsafe system being employed at the site he appeared to have done, or caused to be done, very little to remedy any of the deficiencies in the system at the time of Mr Saad's accident. The conclusion is readily available based on the evidence that if Apex had ensured that appropriate measures were taken, the accident to Mr Saad would not have occurred. The defendant, as a director of Apex, had the authority to implement the measures set out in the Notice.
17Mr Saad was placed at an obvious and foreseeable risk to his safety at the time of the incident given the defective scaffolding and the absence of fall protection. So much has been conceded by the defendant in written submissions. Indeed, the defendant had prior knowledge of the risk to Mr Saad's safety having previously been put on notice by the prosecutor of a number of safety issues which included the presence of numerous gaps in the catch deck.
18The dangers of working at height and the importance of implementing appropriate safety measures for the protection of workers are both well-known in the building and construction industry and have been addressed in a number of Full Bench decisions of this jurisdiction: see, for example, Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156; [2006] NSWIRComm 90; WorkCover Authority (NSW) (Inspector Mason) v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350; (2006) 157 IR 313; WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363.
19In Inspector Jones v James Denson and Anor [2006] NSWIRComm 234, Boland J, President, delivered the following comment concerning an incident at a work site involving a fall from height (at [27]):
Given the danger of falling from a height of three metres, let alone six to seven metres, which may easily result in death as too many of the cases that come before this Court demonstrate, it beggars belief that an employer would not take steps nowadays to ensure that employees working at height were secure.
(See also: Inspector Jason Andrew Wall (WorkCover Authority of New South Wales) v Lubo Medich Holdings Pty Ltd [2011] NSWIRComm 18 at [27].)
20The Court agrees with the prosecution's written submissions that Apex and the defendant ought to have been aware that the task of constructing a new formwork deck at a height of 7.3 metres would have required Mr Saad to work near the leading edge of the deck, at least during the initial stages of the construction. It was, as already indicated, reasonably foreseeable that while constructing the deck Mr Saad was at risk of falling and sustaining serious injury, given the absence of any fall protection. It was also reasonably foreseeable that by reason of the inadequate construction of the temporary catch deck, both in relation to its distance below the formwork deck and because of the presence in it of numerous gaps or penetrations, Mr Saad would be at risk of falling.
21The potential consequences of the breach were also 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 the distance through which he fell, and the area into which he fell, his injuries could well have proved fatal.
22There were also a number of simple, straightforward steps available to the defendant to remedy the defects. The defendant, through Apex, could have, for example, directed the subcontractor, Formcom, to construct a catch platform which was safe for use underneath those areas where persons were required to work at height while constructing the formwork decks. The defendant could also have directed Formcom to cease work on the construction of the decks until it had constructed safe catch platforms, in conformity with the Prohibition Notice issued on 11 July 2006. A further and obvious measure could have been to simply require all workers at the site working at heights in excess of two metres to utilise a fall prevention system such as a harness and line while working near the leading edge of formwork decks.
23Although conceding the foreseeability of the risk, the defendant contended in written submissions that the risk was less foreseeable when regard is had to the preparation by an external consultant of an inadequate SWMS, which was not complied with by Formcom, the defendant's subcontractor. The submission, however, is not consistent with the evidence. According to the agreed facts, the external consultant (TOSS Systems Pty Ltd) (TOSS) prepared a SWMS for the work to be performed by the employees of Apex at the site. It made no specific reference to the construction of formwork decks or the requirements for temporary catch decks for workers working at height near the leading edges of the formwork. The SWMS relevantly required that subcontractors provide a safety plan and a SWMS for, "... work at height greater than three metres". According to Byron Longstaff, who described himself as the operator of TOSS, he met with the defendant and others and agreed to audit SWMS submitted by subcontractors for a fee of $900 per SWMS. Formcom submitted a SWMS to Apex which, according to the agreed facts, was inadequate because it failed to require the erection of temporary catch platforms and handrails where work was performed at heights in excess of 1.8 metres, and in particular, it failed to require that temporary catch platforms be erected not more than 1.8 metres below the formwork deck and be free of penetrations. Mr Longstaff, however, said, in uncontested evidence, that at no time did he audit or advise Formcom. Nor did he have any record of an invoice issued to Formcom.
24It may have been the case that the SWMS provided by TOSS to Apex was inadequate in failing to properly address all relevant issues at the site, but it was restricted in its application to the employees of Apex. A different arrangement was in place for subcontractors, including Formcom but, for reasons not explained, Formcom did not enter into the arrangement. These circumstances do not combine to mitigate or reduce the factor of foreseeability insofar as the defendant is concerned. Apex had a duty, which it failed to discharge, to ensure that its subcontractors, including Formcom, provided adequate SWMS dealing with the requirements to ensure temporary catch platforms and handrails were erected where workers performed work at height above 1.8 metres and that the temporary catch platforms were erected not more than 1.8 metres below the formwork deck and were free of penetrations. The defendant, by his plea to the charges concerning each of the three incidents, has acknowledged this.
25Joseph Karam was also placed at an obvious and foreseeable risk to his safety in circumstances similar to those prevailing at the time of Mr Saad's accident (which had occurred only the day before). Like Mr Saad, Mr Karam was working without fall protection. He was also undertaking the construction of formwork at height for a new formwork deck and was located next to the leading edge of the deck where there was no scaffolding or handrail in place. Moreover, a temporary catch platform below the new formwork deck was incomplete and was a distance of 3.6 metres below the deck.
26This second incident occurred in circumstances where:
(i) the Prohibition Notice issued on 11 July 2006 prohibited Apex from "allowing persons to be at risk of falling off or through formwork decks";
(ii) a serious incident at the site involving Mr Saad's fall from height had occurred only the previous day;
(iii) the terms of the SWMS prepared by TOSS for Apex, and directed towards its employees, dealt with the risk of working at height, at least in part, by requiring compliance with statutory requirements, including the requirement that, "Heights more than 1.8 metres must be secured to prevent persons from falling".
27By the time of the third incident, Apex (and its directors, including the defendant), despite having been made fully aware of the risk of a fall from height at the site, had done nothing to remedy the very serious deficiencies in its systems of work. Notwithstanding a number of prior warnings which directly addressed the risk of falling from height and notwithstanding two very serious prior incidents involving the risk of a fall, Mr Stewart only days after the second incident was placed at serious risk of falling approximately 4 metres from a work platform. Directly below him was a concrete floor.
28Like the first incident, the potential consequences of the breaches arising from the second and third incidents were gravely serious. Both Joseph Karam (who faced a risk of falling 3.6 metres) and Mr Stewart (who faced a risk of falling 4 metres), by reason of the absence of any safety systems such as fall protection, were exposed to very serious, even fatal, injuries. Like the first incident, simple and readily available measures could have been implemented by Apex, or the defendant acting through Apex as its director, to avoid the risks arising from the two subsequent incidents. These measures have been earlier referred to in these sentencing remarks, and need no repetition. With regard to the third incident, the temporary catch platform below Mr Stewart had been removed. Mr Stewart therefore was working without the benefit of a catch platform and without the protection of a harness or other form of fall protection equipment. Either of these deficiencies could have been remedied by the defendant at any stage before 4 August 2006.
29In a recent judgment ( Inspector Fraser v Karabelas [2011] NSWIRComm 56) involving the same three incidents for which Formcom and its sole director, Peter Karabelas, were prosecuted, a Full Bench of this Court made the following observations in the context of a discussion about the application of the principle of totality in the sentencing process (at [35]):
... We would ... note that the three offences committed on the same site were such that, having regard to the surrounding circumstances identified earlier, the first offence was an aggravated offence in view of the two warnings given by Inspector Fraser just days before Mr Saad's serious fall. The second offence was an aggravated offence because, only a day before, the risk of falling from height was dramatically demonstrated to Mr Karabelas and he was therefore aware of the need to have fall protection arrangements, including a catch platform set at the appropriate height. The third incident was also an aggravated offence because of the previous two incidents that had occurred so recently and where Formcom still ignored the same type of safety measure to be taken and indeed, in this case, had removed the catch platform. These offences therefore demonstrated an attitude of deliberate defiance of the safety laws and a conscious refusal to comply with them. The result is that these offences were very serious indeed.
30To similar effect, in the same judgment (at [40] and [41]) it was said:
The continuing failure of Mr Karabelas, as a working director, to ensure the safety of his workers when working at heights requires the imposition of a penalty that will bring home to him the seriousness of his conduct. Her Honour was correct to describe the first incident as "very serious" where the risk was obvious and foreseeable and where the consequences were "gravely serious." Her Honour was also entitled to note that the second incident had similar deficiencies to those demonstrated in the first incident and were "very serious indeed." The need for the catch scaffold by this time was "abundantly clear" yet nothing had been done by Mr Karabelas to address the risk. Her Honour described the third incident as being one where the safety system deficiencies were "even more pronounced than previously." Her Honour was correct to find that there was a failure to ensure basic protective measures were taken and that all of these matters had particular significance for the issue of specific deterrence. The fines imposed should have more adequately reflected her Honour's observation that the disregard of the health and safety of the workers exhibited by Mr Karabelas meant that there was a real possibility that he would re-offend and that the chances of not re-offending were "low."
Apart from the significance of the first offence again involving a disregard for the safety of employees working at height, these three offences demonstrate a continued refusal to abide by safety laws in this respect. There was a repetition of the same deficiencies over the period from 10 July to 4 August 2006 on what was a large construction site. The catch platform in particular was not set at a proper height or it was not fully available during work at height even after Mr Saad had been so seriously injured. That this occurred after the Inspector had twice warned Mr Karabelas about the risk to employees working at heights and had issued a prohibition notice is difficult to understand but then one day after the second incident, those deficiencies continued and Formcom was issued with an improvement notice. It is truly astounding that in those circumstances Formcom and Mr Karabelas had not addressed these obvious risks.
31These observations apply with equal force to Apex and the defendant. The defendant was present at the site on 10 July 2006 when the prosecutor first observed Mr Saad working on a formwork catch deck with no guard rails, and above the catch deck which had numerous penetrations. Those safety issues, and others, were raised specifically with the defendant and George Karam by the inspector. The inspector returned to the site on two more occasions before Mr Saad's accident where he observed the same or substantially similar unsafe work practices left unremedied which exposed workers at the site to the risk of falling from height. He spoke to representatives of Apex and issued a Prohibition Notice which prohibited Apex from placing persons at risk of falling off or through formwork decks. Although it does not appear that the defendant was present at the site on these two latter occasions, as a director of Apex he must have been made aware of the Prohibition Notice and consequently, that the unsafe systems in place on 10 July 2006, (of which he was made aware), had not been rectified. The defendant was on site on the day of Mr Saad's accident when the same unsafe work practices prevailed. It is clear that at that stage, the defendant, although fully on notice of the dangers to the workers, had done little to remedy the deficiencies. Even after Mr Saad's very serious accident, Apex and the defendant did not take effective action to remedy the risk, as evidenced by the two subsequent incidents involving substantially the same deficiencies in Apex's systems of work, and the same risk.
32Apex had, however, at an earlier stage taken some steps to implement safe systems at the site. These systems of work demonstrate an attempt by Apex and the defendant, to institute a safety regime at the site. Because of this, the objective seriousness of the offences is mitigated, to some extent.
33Those systems included the engagement of TOSS to prepare a SWMS for the employees of Apex working at the site and to audit the SWMS submitted by the subcontractors. The auditing process, as earlier noted, was not entered into by Formcom, for reasons not explained. In an affidavit relied upon by the defendant during the sentence proceedings, the defendant said that George Karam was nominated by Apex as the site supervisor, foreman, safety officer and first aid officer and was responsible for ensuring safety and compliance with SWMS developed for work at the site, as well as liaising with the subcontractors in relation to the work to be performed. George Karam, according to the defendant, was also responsible for addressing any safety issues that arose at the site concerning the subcontractors. Apex, the defendant said, also had a policy that it would not sign contracts with subcontractors until such time as TOSS was satisfied that all occupational health and safety matters had been sufficiently addressed by the relevant subcontractor.
34These matters illustrate that Apex had made some attempts to address safety matters at the site, although in relation to Formcom at least, those attempts do not appear to have been successfully implemented. Nevertheless, they will be taken into account in mitigation of the objective seriousness of the offence.