Inspector Nicholson v Sawmaa

Judgment 1As will be seen, these proceedings arise out of certain matters which occurred at a building site at 23 Ryde Road Pymble during May 2007. A number of prosecutions were instituted by the prosecutor in these proceedings against a number of defendants. As far as I am aware, I have dealt with the bulk of those proceedings. In the case of two of them, I acquitted the defendants ( Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara (no 2) [2010] NSWIRComm 151) and in the case of one other the proceedings were undefended ( Inspector Nicholson v Mackey [2010] NSWIRComm 159 and Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40). In most of the remaining proceedings ( Inspector Nicholson v Sawmaa [2011] NSWIRComm 38; Inspector Nicholson v Ibrahim [2011] NSWIRComm 39; Inspector Nicholson v Nahed [2011] NSWIRComm 41), the prosecutor and each of the defendants submitted that the Court should not impose any penalty until the hearing of all of the proceedings had concluded. I have acceded to this request. This explains the apparent delay in the delivery of judgment after the finalisation of the proceedings. Furthermore, I should stress that in considering each of the proceedings, I have deliberately confined myself to the evidence given in each discrete matter and I have not taken into account any evidence given in any other matter. 2The defendant, Alex Sawmaa, has been charged by the prosecutor, Inspector Nicholson of the WorkCover Authority of New South Wales, with a breach of s 26 of the Occupational Health and Safety Act 2000 ("the Act"). The defendant was alleged to be a director of ANS Formwork Pty Ltd ("ANS") and, by virtue of s 26 of the Act, is taken to have contravened s 8(1) of the Act in that ANS "being an employer did between about 1 May 2007 and 2 May 2007 at 23 Ryde Road, Pymble ... fail to ensure the health, safety and welfare at work of all of its employees and in particular Wessam Chehade and Hassan Mhanna ...." 3The particulars of the charge by which ANS is said to have contravened s 8(1) of the Act as set out in an amended application for order are as follows; (lest there be any doubt, the particulars contained in the amended application for order do not contain paragraphs 8 or 9.) (1)At all material times the defendant was a director of ANS Formwork Pty Limited (corporation). (2)At all material times the corporation was an employer. (3)At all material times the corporation provided employees to undertake construction work at 23 Ryde Road, Pymble in the State of New South Wales. (4)At all material times Wessam Chehade and Hasson Mhanna were employees of the corporation. (5)At approximately 9 am on 1 May 2007 Inspector Anthony Nicholson of WorkCover NSW visited the premises and observed employees of NT Prestressing Pty Ltd working at the edge of a building on the premises, in excess of 6 metres above the ground, without any fall prevention system in place. (6)At approximately 8:15 am on 2 May 2007 Inspector Anthony Nicholson an employee of WorkCover NSW visited the premises and observed Wessam Chehade and Hasson Mhanna and another worker ('workers') working on the edge of a building on the site, in excess of 6 metres above ground level, without any fall prevention system in place. (7)The corporation failed to ensure the health, safety and welfare at work of its employees by failing to: (a)conduct an adequate risk assessment with respect to working at heights upon the premises; (b)provide employees adequate fall prevention systems at the premises, including any: (i)perimeter scaffolding (ii)temporary handrails (iii)fall arrest harnesses (iv)safe work platforms (v)toe boards (c)provide and maintain a safe system of work at the premises, including by providing and ensuring compliance with safe work method statements. (d)conduct any adequate premises specific induction training before working at heights at the premises; (e)provide any or any adequate information, instruction or training to its employees at the premises with respect to working from heights; and (f)provide any or any adequate supervision to its employees at the premises with respect to working at heights. (8)(deleted) (9)(deleted) (10)The corporation's employees, and in particular Wessam Chehade and Hasson Mhanna, were thereby exposed to a risk of serious injury or death as a result of the risk of a fall from height. 4An agreed statement of facts and other documentation was tendered in the proceedings. In addition, the prosecutor and the defendant both gave evidence. 5The defendant pleaded guilty to the charge and this judgment is concerned only with the question of penalty. 6The factual background, which I am satisfied has been established to the requisite standard of proof, may be summarised as follows. 7A substantial multi-storey commercial building was being constructed by Pymble No 1 Pty Ltd at 23 Ryde Road, Pymble. The value of the project was approximately $4.5 million. The principal contractor appointed to the project was Millennium Projects Australia Group Pty Ltd ("Millennium"). Millennium sub-contracted certain concreting and formwork activities at the project site to REI Construction Pty Ltd ("REI"). REI entered into a contract or arrangement with ANS to provide labour to REI for the performance of its work at the project premises. Two employees of ANS, Wessam Chehade and Hassan Mhanna, performed work at the premises on 1 May and 2 May 2007. These employees were observed working at the edge of a formwork deck approximately six metres above ground level without any means of fall prevention system in place. The prosecutor had, in fact, issued a prohibition notice with respect to this work on 1 May 2007 but, notwithstanding the issue of that notice, work was carried out under the same conditions on the following day, namely 2 May 2007. However, the prohibition notice was issued to Millennium and there is no evidence that either ANS or the defendant had any knowledge that such a notice had been issued. 8As is conceded by the entry of his plea of guilty, the defendant has admitted that ANS failed to conduct an adequate risk assessment with respect to the work being undertaken by its employees, has failed to provide the fall prevention systems including those mentioned in the amended application for order and has failed to provide induction training and supervision. 9As was conceded by the defendant, at no stage did ANS attend the project site for the purpose of assessing the work to be carried out by its employees, nor did ANS take any steps to ensure that the employees were inducted into the site, or were adequately supervised and instructed about the safe means of carrying out their work. 10In affidavit evidence, the defendant said that ANS had no involvement at the site and had no authority in relation to occupational health and safety issues. He was "of the view that it was the responsibility of Mr Ibrahim and REI." 11On becoming aware on 2 May 2007 that the WorkCover Authority of New South Wales was investigating the safe operation of the site, the defendant said that he immediately directed the employees of ANS to cease work. 12In the course of his affidavit evidence, the defendant said that he now understands the need to act proactively to ensure the safety of employees and the need to take all practical precautions in this regard. He also said that he now understood that he should not rely on representations made to him by third parties concerning safety issues, that he has a special responsibility to ensure compliance with occupational health and safety matters, that he should have visited the site to ensure that it was safe and "I am deeply ashamed and embarrassed at the fact that I put my employees in a position where there existed a threat to their safety, health and welfare and it has made me feel quite depressed at the fact that I exposed my employees to such a threat. I have learnt from this experience and strive to ensure that I do not expose my employees to any threat to their safety, health and welfare." 13There was also tendered into evidence on the defendant's behalf an affidavit of financial circumstances. The defendant, through his counsel, did not advert to the contents of this affidavit during the course of submissions. I shall refer again to the contents later in these reasons for judgment. 14The starting point for the fixing of an appropriate penalty is a consideration of the objective seriousness of the offence. I regard the offence as being a serious one, as was conceded by the defendant. ANS dispatched the two named employees to a building site without taking any steps, on the evidence, to ensure that the working environment in which these employees would be engaged was appropriately safe and without risks to their health. As it transpired, the employees were required to carry out their work in a dangerous environment. 15The obligations of persons and entities that supply labour to work for third parties on third party premises are well described. It is sufficient only to refer to the judgment of a Full Bench of this Court in Drake Personnel Ltd t/as Drake Industrial v Workcover (1999) 90 IR 432. At [455]: Indeed, in our view, an employer who sends its employees into another workplace over which they exercise limited control is, for that reason, under a particular positive obligation to ensure that those premises, or the work done, do not present a threat to the health, safety or welfare of those employees. Certainly, there is no basis to consider that such an employer has a lesser liability or obligation under s15(1). 16As is seen in the joint judgment, the Full Bench stresses that liability under the Act is a non-delegable duty extending beyond the principal employer and imposes an obligation to take proactive steps to ensure work environments are safe. At [456]: In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe. 17In all the circumstances, it must be concluded that the serious nature of this offence compels the imposition of an appropriately substantial penalty. 18In fixing a penalty, I shall also have regard to the deterrent effect both general and specific that the imposition of a penalty provides. In specific terms, the defendant continues to be a director of a company that appears to be engaged in the building industry. The defendant is not personally working at the present time, being incapacitated because of a work-related injury. However, he said in evidence that he would resume work as a construction manager when he is able to do so. 19The defendant has entered a plea of guilty on the earliest appropriate occasion. Furthermore, it has been accepted by the prosecutor that the defendant has expressed contrition and remorse for his breach of the Act, has co-operated fully with the WorkCover Authority of New South Wales in and about its investigations of the circumstances pertaining to the particular building site and has no previous convictions. 20The Court is compelled by s 6 of the Fines Act 1996 to consider "such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration" in exercising a discretion to fix the amount of any fine. The affidavit of financial circumstances, at face value, indicates that the defendant has an income of some $300 per fortnight in excess of outgoings. Furthermore, it discloses total assets of $540,000 and total liabilities of $460,840. No submissions of any kind were made by the defendant's counsel concerning the content of the affidavit of financial circumstances or the defendant's capacity to pay any penalty. Specifically, no application was made by counsel for the defendant pursuant to s 6 of the Fines Act . I conclude that whilst there is some information available to the Court, it would not be appropriate to rely upon it in determining the means of the defendant to pay any penalty imposed. At the least, there would need to be some consideration given to the contents of the affidavit and, in particular, concerning the details with respect to the real estate property which is referred to therein. 21The maximum penalty is the sum of $55,000 22In assessing penalty, I take into account all of the matters to which I have referred above. In considering the seriousness of the offence, I do, however, take into account that the overall safety of the site was in the hands of the principal contractor. Nevertheless, as I have pointed out earlier, this does not exculpate ANS from its obligations under the Act to ensure the health, welfare and safety at work of its employees. These observations are indicative that the culpability of ANS, although reflecting a serious breach of the Act, may be regarded as something less than that of the principal contractor. Given the state of the evidence, the culpability of this defendant should reflect that of ANS. 23In all the circumstances, I intend imposing a monetary penalty of $13,000. The prosecutor sought orders for costs and the grant of a moiety, which I shall accede to.