13 During the proceedings, Mr Smith disputed some matters sought to be relied upon by the prosecutor. The main area of dispute concerned the state of the floor in H1 West. According to the prosecutor, the area in H1 West at the time of the incident was cluttered with materials, and a number of different tradespeople were working in the area at the same time resulting in poor organisation of work, materials and people. Mr Smith, on the other hand, contended that the floor area in H1 West at the time of the incident was uncluttered, clean and swept, with no materials stored there that should not have been there.
14 Mr Smith relied on photographs taken by the prosecutor on the same day, shortly after the incident, to support the contention. According to Mr Smith, the photographs (numbered 2, 12, 23 and 24) depict about 20 to 30 percent of the floor area in H1 West and show, "an uncluttered floor with no materials in the area". Photographs 12, 13 and 14, according to Mr Smith, depict the actual frames that were leant against the incident wall (causing it to collapse) but those frames were not stored in the area while the bricklayers were working.
15 The prosecutor tendered a record of interview with the bricklayer who constructed the incident wall, Jeff Lee, from JML Bricklaying. Mr Lee was asked whether, at the time the JML Bricklayers were laying bricks in H1 West, they had a clear area to work in. He replied:
It wasn't too bad, there was still some formwork there and I had to get it moved.
16 The precise time during which this state of affairs was said to have existed in H1 West is not clear from the record of interview, however, it appears to correspond to a period of time about two days before the incident. This period of time falls within the date on which the offences occurred, namely, between 16 and 18 November 2006.
17 Mr Lee was asked further questions in the record of interview in relation to the issue. Those questions and his responses are extracted below:
Q38 Prior to the incident, where were the formworkers storing their formwork material?
A38. There was formwork material stored on the ground at the west end outside the building, and where the formworkers were working.
Q41 Did you have any safety concerns on the site prior to the incident?
A41. Yes, there were safety issues. One of the main ones was trip hazards from materials across the floors, way too much material stored on each floor. The majority of the stripped formwork was sitting on the floors because they didn't have the man power to move it because they were all working on the formwork for the pours. There wasn't enough power boards on site. We were running leads from floors below. One big thing was water taps. Every trade was trying to use one tap on each floor. Every one would rip out a hose while the brick saw was running so they could hook up to the tap. At one stage, there were three floors using the one tap. The coordination of the trades was poor. Everybody was working over the top of each other. All the trades I spoke to told me they didn't have a free run at the work.
On one day, we made Mercer Constructions remove the formwork off a section of H1 level. They finally moved it, and we were set to start. Over the weekend, the framers came in installed frames. I had to work around the framers. Rick Smith told the framers to work. I went past the other day and those walls still aren't lined, so there was no need to install the frames before we laid the bricks. I was bricking walls up around service penetrations, that Rick Smith wanted put up, and next the plumber was knocking them down because he hadn't put the pipes in the penetration yet. In the basement area there was a lot of trouble. The post tensioning guys hadn't finished and we were laying blocks around them before they finished stressing. One day I had a massive screaming match with Rick Smith. He had me come to site to lay bricks, and when we turned up, there was a massive pile of gravel on the slab and a bobcat running around backfilling the walls. We couldn't work while the bobcat was running around, and anyway, there wasn't any sand on the slab for us to use anyway. I saw Rick Smith load up the basement level and H1 West level with pallets of bricks, sand and materials even before the formworkers had started to strip the formwork. They were expected to strip the formwork around the pallets and sand. Because they built the west end first, they were dragging the materials over to the east end before the formworkers were even ready to form up.
Q42 Who did you raise these safety concerns with prior to the incident?
A42. I spoke to Rick Smith many times about giving us a free run, I spoke to Darren Mercer about giving us a free run. By free run, I mean coordinating the trades properly, cleaning up the area we were expected to work in, a clear area for us to work in.
Q43 What did Rick Smith and Darren Mercer do once you raised these safety concerns?
A43. They would agree with me that I needed a free area, but it never happened.
18 Mr Lee, when asked his opinion as to the cause of the accident, said that it would not have occurred if the formwork had been completely stripped thereby dispensing with the need to stack material in the area.
19 Andrew Pearson, the safety officer at the site and an employee of Colmerc, was also asked in a record of interview some questions about multiple trades working in the same area at the same time. Those questions and his responses are extracted below:
Q95 Why were the bricklayers working in the immediate area of the formworkers while they were still in the process of stripping formwork on the level that the incident occurred?
A95. The foreman Rick Smith asked them to.
Q96 Who organised for the bricklayers to work on the same level and area as the formworkers?
A96. Rick Smith.
Q97 What do you believe could have been done to prevent the accident from occurring?
A97. Appropriate supervision of formworkers by the formwork foreman. Segregation of different trades. Suitably qualified and experienced formworkers undertaking the work.
20 Neither Mr Lee, nor Mr Pearson, were required for cross-examination. I am satisfied, therefore, (beyond reasonable doubt) that the area in H1 West accommodated, one or two days before the incident, a number of tradespeople working there which caused difficulties in co-ordinating the workforce and properly organising the assemblage and dispatching of materials from the site, which in turn hampered the overall work effort. The evidence is sufficient to sustain an inference that the state of H1 West at this time gave rise to safety issues associated with the risk of collapse of the incident wall, on 18 November 2006.
21 The finding is supported by the agreed facts (set out above) that the bricklaying was being done before the formwork in H1 had been stripped and stored which meant that sub-contractors from different trades were working alongside each other. The comment made in relation to this in the agreed facts was that, "it was particularly important that there was good communication and supervision of the different work".
Other objective factors
22 The risk to the safety of the workers on the day of the incident arose, in the Court's view, because of inexperienced workers at the site who were inadequately instructed and supervised, and because of the absence of safe alternative means of transporting and storing the materials stripped from the H1 area.
23 As the agreed facts record, the majority of the O&H Construction workers were overseas students, recently arrived in Australia with no previous construction experience. Most of them could not read English.
24 With regard to matters of training, supervision and information, the agreed facts record that Mr El Gendy received "limited" O&H Construction induction prior to the incident. The only training received by the other O&H Construction employees was "on the job". Nothing in the agreed facts sheds any further light on what Mr El Gendy's "limited" training consisted of or what elements comprised the "on the job" training received by the other workers.
25 With regard to supervision and information, the agreed facts set out the following matters:
There was confusion on the site as to who was the supervisor of the O&H's employees. Mr Smith believed Mr Abdulmajeed was the supervisor of O&H. When Mr Ibrahim engaged Mr Hussein to supply labour to the site, he stated that O&H had to provide a supervisor, and Mr Ibrahim was informed that this would be either himself or Mr Osman Abdulla. Mr Hussein and Mr Abdulla did supervise the O&H employees when they were at the site. Neither he nor Mr Abdulla were at the site however on the day of the Incident nor on the previous three to four days.
Mr El Gendy, Mr Elzaher and Mr Saddick did not know who their supervisor was.
The O&H employees did not know who the builder or person in control of the site was.
On the day of the incident, there was no direct supervision of the O&H workers on the H1 level by either O&H or REI. Mr Abdulmajeed was on site as the supervisor representing REI and Multi-Formwork, but not O&H.
As the Site Foreman supervising works at the site on the day of the incident Mr Smith did not direct JML Bricklaying that when it had constructed the untied and unbraced newly constructed free standing block masonry wall, which was still 'green' (the Incident Wall), that the area around that wall was to be cordoned until such time as the wall was braced or otherwise made stable, because Mr Smith deemed the wall safe and did not require bracing.
There was no written information given to any of the employees of O&H. None of the employees were shown or told the contents of the only SWMS for formwork on site that was prepared by REI. There were no written procedures for O&H or SWMS. Most of O&H employees could not read English.
26 The agreed facts do not allege that Mr Smith had direct supervisory responsibilities for the O&H Construction workers. It is apparent that no one person or entity present at the site at the time of the offences exercised, or considered they (or it) had, supervisory responsibilities for the workers. This was a particularly serious deficiency in the systems operating at the site given the workers' collective inexperience and, in most cases their limited capacity to read English.
27 As for Mr Smith's role at the site it was an agreed fact that he was responsible for day to day supervision of the work being done at the site by the contractors. According to Mr Smith, this responsibility did not extend to direct supervision of the individual workers at the site. It was limited to supervision and co-ordination of the "head contractor" for each trade. Mr Smith said Mercer performed the inductions and his role was, "to point them in the right direction". According to Mr Smith the supervisor appointed by each of the sub-contracting entities gave directions to the employees of that entity.
28 To some extent, Mr Smith's actions on the day the wall collapsed belie his words. By his own account Mr Smith gave direct instructions to O&H Construction workers on 18 November 2006 not to stack the materials in H1 West. He directed them to move formwork frames (which had been deposited in the area near the incident wall) because he said he needed the area cleared for the bricklayers. He directed the workers to return the materials to H1 East, in readiness, he said, for the delivery of a crane and platform due at the site the following Monday (which would be utilised to transport materials to the next level).
29 The newly constructed wall once lateral forces were exerted against it (the steel frames) presented an obvious hazard to any worker who came within its near vicinity. It was, in addition to being "green", freestanding, not braced or tied and no barriers or signage were placed around it to prevent access. Australian Standard AS 3700-2001 Masonry Structures states at 11.9.1 and 11.9.2:
11.9.1 Temporary bracing
Masonry under construction shall be braced or otherwise stabilised as necessary to resist wind and other lateral forces, in such a manner that the structural integrity of the member or structure is not impaired.
11.9.2 Premature loading
Masonry shall not be subjected to any load until it has gained sufficient strength to carry this load safely.
30 Australian Standard AS 3700 Supplement 1 - 2004 provides the following supplemental information on matters of temporary bracing and premature loading of masonry under construction:
C11.9.1 Temporary bracing
It is not unusual for high winds, soil or water pressure to cause the collapse of incomplete masonry, when the flexural strength from mortar bond is not fully developed or when lateral support from returns and floor or roof structures are not yet provided. Site control should recognise this hazard and should make provision for temporary bracing capable of stabilising the construction, where necessary, to be installed.
C11.9.2 Premature loading
It is usually assumed that the design strength of unreinforced masonry is fully developed at an age of about 7 d (days). For reinforced masonry this should be extended to 28 days, because of the grout component in that masonry. Greater times should be allowed during periods of cold weather when the rate of gain in strength of the masonry is reduced because of the lower temperatures.
31 A WorkCover publication, tendered by the prosecutor, entitled "Safety Alert. Temporary Support of Masonry Walls under Construction", states, relevantly:
This alert is produced as a result of a number of recent masonry wall collapses that have resulted in death and serious injury in the construction industry.
This document alerts people to the potential collapse hazard associated with the construction masonry walls. It provides guidance about precautions to prevent masonry walls from collapse before being fully incorporated into the finished structure.
Masonry walls, and in particular freestanding walls not yet attached to any other structure, are vulnerable to wind or other lateral forces. They are particularly vulnerable to instability problems because their ability to withstand lateral forces greatly reduces as the height of the wall increases.
Therefore it is essential that principal contractors, employers and subcontractors assess the risk of collapse of masonry walls which are not tied in to the completed structure and determine and implement appropriate risk control strategies.
32 These matters attest to the very serious and obvious risk to the safety of workers in the vicinity of the wall once the O&H Construction workers placed the steelwork frames against the wall. They also serve to illustrate that Mr Smith fundamentally misunderstood the nature of the newly constructed wall which he had deemed safe and therefore unnecessary to be braced.
33 The risk to safety in the circumstances was also reasonably foreseeable, a fortiori when the inexperience and absence of supervision of the O&H Construction workers is factored in.
34 The likely consequences of the breach of the offences, realised in the serious injuries sustained by Mr El Gendy, also add to the seriousness of the offences.
35 Another factor which adds to the overall seriousness of the offences is that simple and readily implemented steps prior to the offences would have avoided the risk. Work could have been organised by way of appropriate instruction and supervision to ensure that none of the workers were required to work in the vicinity of the incident wall. The wall itself could have been barricaded and/or otherwise properly secured.
36 On the issue of failure to provide supervision to the workers engaged in the stacking of the steel frames, Mr Smith, after instructing the workers to remove the frames from the area in H1 West, could have, following Mr Abdulmajeed's arrival at the site (before the wall collapsed), spoken directly to Mr Abdulmajeed to ensure his instructions were properly carried out. Although the agreed facts state that Mr Abdulmajeed was the supervisor on site representing REI and Multi-Formwork, not O&H Construction, Mr Abdulmajeed nevertheless took it upon himself to supervise and direct O&H Construction workers to form a chain and transport materials up the staircase in the H1 West area in the vicinity of the incident wall. These facts suggest that had Mr Smith spoken to Mr Abdulmajeed some appropriate alternative arrangements could have been made to ensure the safe passage of the materials and the safety of the workers.
37 General deterrence also falls for application. I adopt my observations on this issue made in Inspector John Patton v Romeo Elias Ibrahim and Others [2010] NSWIRComm 109 at [63]:
General deterrence must also be applied. The present set of circumstances reveals a most unsatisfactory approach to matters of safety at a construction site. Construction sites are, or can be, notoriously dangerous places for workers when they are not the beneficiaries of well-organised and promulgated systems, adequate instruction, information, training and supervision. The present matters are a timely illustration of what can go wrong when safety procedures are not properly addressed, devised or implemented. The importance of safety measures again needs to be emphasised to all employers and contractors who engage workers, particularly inexperienced workers, to perform work at a construction site.
38 Specific deterrence also falls for application at least as regards Mr Smith's circumstances. Mr Smith informed the Court that he has worked in the construction industry for some 25 years and during that time no workers under his control or supervision have suffered any work-related injury. This good record will be taken into account in Mr Smith's favour in assessing penalty. Nevertheless, Mr Smith continues to work in the construction industry having recently formed a new corporation, "Calec Construction Group" of which Mr Smith is a director. Calec Construction Group undertakes work in the construction industry. Talon Lock is in liquidation. Specific deterrence therefore has no application to that defendant.
39 Neither defendant has prior convictions. The maximum penalty faced by Talon Lock is $550,000 and by Mr Smith, $55,000.
Subjective factors
40 Both Talon Lock and Mr Smith entered pleas of guilty to amended charges which were filed in court on the day of the sentence proceedings by the prosecutor. In these circumstances, the Court finds that the pleas of guilty were entered by both defendants at an early stage. I propose therefore to award a discount of 25 per cent on penalty for the utilitarian benefit derived from the pleas of guilty.
41 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 the two defendants also entitles them to leniency normally extended to an offender who is not adversely recorded.
42 The defendants also co-operated with WorkCover during the course of its investigations into the incident.
43 Mr Smith also informed the Court that he and his wife are guarantors for a debt in the vicinity of $9.5 million. the debt is owed to Network Consumer Finance Pty Limited (NCF) by one of Mr Smith's former companies, Upper Class Developments Pty Limited. Mr Smith tendered a statement of claim in support of a submission to the effect that he had a limited capacity to pay a fine. The statement of claim lodged on 3 February 2009 nominates NCF as the plaintiff and Mr Smith as the defendant in Supreme Court proceedings. A claim in the sum of $12,586,069.32 is made against Mr Smith in relation to a loan agreement between NCF as the lender and Mr Smith, Shani Gwen Smith (Mr Smith's wife), Calzah Pty Limited and Upper Class Developments, as borrowers.
44 In the presence of the prosecutor, at oral hearing, it was explained to Mr Smith by the Court that in order for it to take into account his capacity to pay a fine, reliable and comprehensive evidence needed to be placed before the Court. Mr Smith was invited to provide relevant financial records to the Court and to the prosecutor if he wanted the Court to take into consideration in his sentence proceedings his capacity to pay a fine. The prosecutor agreed to explain to Mr Smith after the sentence hearing what type of documentation the Court would require in order to properly consider the issue.
45 Documentation was sent by Mr Smith some days after the sentence hearing. On the basis of the prosecutor's acquiescence in the matter, the Court intends to consider the material.
46 The documentation consists of the following records: