Inspector Nikolovski v City Civil Pty Ltd

Judgment 1City Civil Pty Ltd ("City Civil") is a specialist demolition company holding a restricted demolition licence. The company undertakes small to medium-scale demolition of structures, excavations and also the removal of asbestos. The sole director and secretary (and also the sole shareholder) is Mr Peter Bakhos ("Mr Bakhos"). 2In late August 2007, City Civil and Mr Bakhos were engaged in the demolition of a single-storey domestic dwelling with a separate garage located in Dennistone Road, Eastwood. At that time City Civil employed: Mr Bakhos as a working director; Mr Kevin Hanna as a labourer; Mr Elya Elia as a leading hand (also designated as the occupational health and safety consultant); Mr Josuah Bakhos as a site supervisor; and, Mr Anthony Khoury as a supervisor, nominated for the purposes of demolition work on the corporation's demolition licence. City Civil had also recently engaged Mr Lewis Korie to perform work as a labourer. 3The first day of working at the site involved stripping out the interior of the dwelling and Mr Korie was not present at the site when that work was carried out. Mr Korie attended the site on the second day of work being performed and became involved with Mr Elia in working on the roof of the dwelling. Mr Elia and Mr Korie were to remove tiles from the roof as part of the demolition process. When work commenced it was a cold, clear morning and there was dew on the ground. Mr Elia had entered the roof space of the building using a ladder and had begun to remove roof tiles in order to provide access to the sloping roof. Mr Elia created an external exit for access to the roof but that access point was close to the edge of the dwelling and on the driveway side of the building. Mr Elia crawled to the peak of the roof and removed the ridge capping and one row of tiles. While at the peak of the roof, Mr Elia called Mr Korie to come on to the roof. 4While in the course of anchoring his lanyard to the ridge board of the roof Mr Elia saw Mr Korie coming on to the roof but then turned away and continued performing his work. When Mr Elia turned round again Mr Korie was not on the roof and after calling out for him, ultimately, he saw that Mr Korie was lying on the ground below. Mr Korie was attended to on the ground prior to the arrival of an ambulance and eventually he was transported to Royal North Shore Hospital. Mr Korie was diagnosed as suffering from traumatic head injury and fractured ribs. Six days after this incident, Mr Korie died in hospital. 5The occurrence of this accident caused WorkCover Inspector Nikolovski to commence proceedings against City Civil for a breach of s 8(1) of Occupational Health and Safety Act 2000 ("the Act") and against Mr Bakhos, as a director, under s 8(1) by operation of s 26(1) of the Act. Except for the reference to Mr Bakhos' position as a director of City Civil, the amended particulars in each matter were identical and were in the following terms: The particulars of the charge are The particulars of Risk are: (a) The 'risk' of employees of the defendant and in particular Mr Korie and Mr Elia, of falling from the roof of a single storey domestic dwelling ("dwelling") at the site to the ground approximately 3 to 4 metres below whilst they were accessing the roof and/or undertaking the work of demolishing the roof of the dwelling. The particulars of the acts of omissions in failing to eliminate the risk are that: (b) The defendant failed to provide and maintain a safe system of work for accessing the roof and/or undertaking the work of demolishing the roof of the dwelling at the site in that it failed to undertake measures as follows: (i) the selection of a location for the roof access point that was located at a point in the roof that was more than 2 metres from the unprotected leading edge of the roof; (ii) the selection of a location for the roof access point that was not on a sloping part of the roof immediately adjacent to the unprotected edge of the roof; (iii) the provision of a safe anchor point for employees to attach a retractable lanyard and harness located at the roof access point; (iv) requiring that its employees wear fall arrest devices which were secured to an appropriate anchor point prior to proceeding from the roof access point onto the roof of the dwelling; (v) requiring employees to wait at the internal exit of the roof access point until their retractable lanyard and harness had been attached to the anchor points at the apex of the roof; (vi) the provision of roof rails of scaffolding around the leading edge of the roof whilst employees were accessing the roof and/or undertaking the work of demolishing the roof; (vii) the provision of mobile scaffolding or an elevated work platform or similar equipment for use by employees whilst undertaking the work of demolishing the roof of the dwelling. (c) The defendant failed to provide adequate information, instruction and training to its employees with respect to safe working at heights, including safe access to the roof of the dwelling in that it failed to undertake measures as follows: (i) identifying in a Safe Work Method Statement and in a Risk Assessment and Safety Plan that employees were exposed to the risk of falling from height once they accessed the roof from the roof access point; (ii) providing Mr Elia and Mr Korie with information and instruction that they would select a location for the roof access point that was located at a point in the roof that was more than 2 metres from the unprotected leading edge of the roof; (iii) providing Mr Elia and Mr Korie with information and instruction that they should select a location for the roof access point that was not on a sloping part of the roof immediately adjacent to the unprotected edge of the roof; (iv) providing Mr Elia and Mr Korie with information and instruction that they should identify a safe anchor point located at the roof access point for the attachment of a retractable lanyard and harness prior to attaching to the anchor points at the apex of the roof; (v) providing Mr Elia and Mr Korie with information and instruction that they needed to be attached to a secure anchor point while they were accessing or working on the roof; (vi) providing Mr Elia and Mr Korie with training in identifying a secure anchor point while they were accessing or working on to roof. (d) The defendant failed to ensure that there was adequate supervision of its employees while working at heights including whilst accessing the roof of the dwelling in that it failed to undertake measures as follows: (i) requiring that a supervisor, nominated or authorised under the defendant's Demolition licence, undertake an inspection of the roof of the dwelling to ascertain if it was safe for employees to access the roof; (ii) requiring that a supervisor, nominated or authorised under the defendant's Demolition licence, undertake an inspection of the roof of the dwelling to ascertain the location of a safe anchor point on the roof to anchor a lanyard and harness system. (e) The defendant failed to ensure that its employees working at height had adequate experience, training and skills to perform work associated with demolition work, in particular, working at heights prior to allowing them to undertake work at the site in that it failed to undertake measures as follows: (i) failing to require Mr Korie to provide evidence as to his prior construction work experience in Greece; (ii) failing to undertake any other enquiries to ensure that Mr Korie had relevant training and experience before engaging him in demolition work. As a result of the abovementioned failures, Lewis Korie and Elya Elia were placed at risk of injury. As a result of the abovementioned failures, Lewis Korie was fatally injured. The injuries sustained by Lewis Korie was a manifestation of that risk. 6At the third directions hearing, following a request for further particulars and further discussions between the parties, both defendants entered pleas of guilty. A sentencing hearing was vacated in light of the decision of the High Court in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs ) (2010) 239 CLR 53 ("Kirk"). In late April 2010 each defendant filed a Notice of Motion seeking to be allowed to withdraw their plea of guilty and to enter a plea of not guilty in view of what was regarded as significant changes to the law highlighted in the Kirk judgment. By mid-May 2010 Inspector Nikolovski had filed a Notice of Motion in each matter seeking leave to amend the particulars appearing in each Application for order due to the recent Kirk decision and because of the need for greater particularity in dealing with each defendant's acts or omissions constituting the alleged offence. 7In August 2010 the parties agreed that the matters should be adjourned until the Court of Appeal had delivered judgment in John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338, a judgment that was delivered in December 2010. The motions of the prosecutor and the defendants were then heard by the Court in February 2011 and in March 2011 the Court granted the prosecutor's Notice of Motion in each case and allowed the particulars to be amended (see Inspector Nikolovski v Peter Bakos and City Civil Pty Ltd [2011] NSWIRComm 20). As indicated to the Court during the hearing of the prosecutor's Notice of Motion, the defendants did not press their Notices of Motion following the Court allowing the statement of charge in each case to be amended. Each defendant then promptly notified the prosecutor and the Court that their guilty pleas would be maintained in relation to the Amended Applications for Order. 8The evidence for the prosecutor was constituted by the following documents: (a) an Agreed Statement of Facts; (b) several photographs of the site and the area surrounding the place where Mr Korie fell; (c) a factual inspection report prepared by Inspector Nikolovski; (d) two site plans of the Dennistone Road location; (e) a photograph of the building prior to its demolition; (f) a safe work method statement prepared in relation to the Eastwood site; (g) a record of a toolbox talk held on the day of the accident in which, amongst other matters, it was noted that harnesses must be worn; (h) a safety plan for demolition for the site and a risk assessment form identifying the risk of working at heights and the need for the use of harnesses and lanyards and dated the day of the accident; (i) a City Civil site induction form dated the day of the accident relating to Mr Korie; and (k) certificates showing that neither defendant had a relevant prior record. The Agreed Statement of Facts appears as an annexure to this judgment. 9The evidence for the defendants was primarily contained within an affidavit sworn by Mr Bakhos. Mr Bakhos' affidavit confirmed the nature of the undertaking of City Civil and attached numerous documents dealing with the development of the company's safety systems as well as providing accounting and taxation records regarding the financial position of each defendant. 10City Civil had commenced business in early 2006 and by August 2007 had completed approximately 450 house demolitions, excavation and asbestos removal projects. At the time of the accident the company employed approximately 10 people. Mr Bakhos stated that the company held appropriate public liability and workers compensation insurance policies. 11It was asserted by Mr Bakhos that, at all times, the company took safety very seriously. Training was provided to employees by supervisors or management although instructions were predominantly "verbal." There were regular toolbox talks and hazard reports made available to all staff regarding any issues that arose. There had been no safety incidents prior to August 2007. 12The site supervisor at the Eastwood project was Mr Joshua Bakhos who was a qualified demolition supervisor. Mr Elia was the occupational health and safety co-ordinator on the project and was on the roof at the time of the accident. He had undertaken courses in occupational health and safety consultation and had undertaken an advanced senior first aid course. Some days prior to the accident, Mr Korie undertook an occupational health and safety general induction construction course. At the time of the incident four staff of City Civil held demolition supervisor tickets. 13Mr Johsua Bakhos, as the project manager and supervisor at the Eastwood site, carried out risk assessment responsibilities for that site prior to work commencing. City Civil used both site inductions and toolbox talks as part of its safety system. Mr Bakhos stated that the company did not use rails for safety protection because the roof was being removed and the tiles and roof frame were being taken down by hand. The method used by the company was the same method used by all other house demolition companies at the time and is still the method used now by all demolition companies involved in home demolition. There was a system whereby, prior to commencing each house demolition, notification was to be given to WorkCover seven days prior to the commencement of work. Mr Bakhos noted that WorkCover regularly audited City Civil and that the method of carrying out demolition work was clearly identified for each project. He stated that scaffolds were not used and that the cost would be prohibitive. Scaffolds were not used at that time nor were they presently used by other companies performing house demolition 14Mr Bakhos described the first aid assistance provided immediately to Mr Korie, including the steps whereby Mr Korie was admitted to hospital. The company notified its workers compensation insurer and notified WorkCover that there had been a serious fall at the site and that the worker had been taken to hospital. Mr Joshua Bakhos carried out an accident investigation report on the day of the accident and an entry was made in the company's register of entries. 15Following the accident, City Civil paid all Mr Korie's funeral costs and paid a $5000 death benefit to the Construction, Forestry, Mining and Energy Union to be provided to Mr Korie's family. Mr Bakhos said that the accident affected him greatly and strengthened his determination to take whatever action he could to ensure that such an incident would never occur again. Since the accident he had regularly talked to employees on all the company's projects about the importance of keeping people safe. In the period since the accident he had become acquainted with Mr Korie's family and had attended the wedding of one of Mr Korie's brothers. He had helped the family cope with their "enormous loss." 16Details of City Civil's expenditure on occupational health and safety were provided, including expenditure on personal protective equipment, safety signage, re-writing of the company's safety policies and procedure documentation and the revision of its safety systems. Following the accident, the company engaged the Demolition Contractors' Association to re-draft all its safety documentation. The finalised product of that exercise was placed before the Court. Mr Bakhos repeated that he was "truly regretful about this tragic accident" and stated his belief that efforts taken since the accident showed that he was sincere about making the company as safe as reasonably possible. Mr Bakhos was not required for cross-examination.