Inspector Nikolovski v City Civil Pty Ltd

DELIBERATION 17The parties were agreed as to the legal principles to be applied to this sentencing task and there was no particular issue that required a re-visiting of those principles. Thus, the parties proceeded on the basis that the primary consideration was the objective seriousness of the offence. The defendants frankly accepted that this was a serious breach having regard to the inherent dangers of the industry and the work being performed on the day in question. It was also accepted that, having regard to Mr Bakhos' position as the sole director and shareholder of the company and his level of participation in directing the work, his level of culpability was equal to that of the company. 18The defendants, in entering their guilty pleas, accepted the particulars of the charge that there was a risk to health and safety relating to employees of City Civil and, in particular that Mr Korie and Mr Elia were exposed to risk to their safety having regard to the work they were performing. While the company had provided a system of work that addressed safety and in particular, required the use of a harness and lanyard when working at heights, the gap in the system was the failure to provide an anchor point for the lanyard prior to employees climbing through the roof access point on to the roof. The system therefore left employees in danger of falling up to four metres (depending where on the roof the work was being performed) between climbing through the access point on to the roof and then to secure the lanyard to permit work to be conducted safely while on the roof. The prosecutor accepted that, if such an anchor point was provided securing an employee prior to climbing on to the roof, then there would be no need for roof rails or scaffolding around the leading edge of the roof or for the provision of mobile scaffolding or an elevated work platform or similar equipment. Any of those other measures would be required if an anchor point was not provided to secure an employee prior to climbing on to the roof. The defendant also conceded that the risk of falling from the roof was entirely foreseeable and that without proper safety procedures being adopted, there was a risk of very serious injury. The Court accepts the prosecutor's submission that the measures particularised in each case could easily have been implemented and would have eliminated the risk that existed at this site. Having regard to these matters it may readily be concluded that each defendant has committed a serious breach of s 8(1) of the Act. 19General deterrence must necessarily form a significant part of the penalty to be imposed. The defendants accepted that this was an inherently dangerous industry and that there was an obvious risk of falling while performing demolition work. The penalty to be imposed in these two matters should bring home to those working in this specialist industry, as well as those working in the wider construction industry, not only the need for diligence in assessing risks and eliminating them in the workplace but should also draw attention to the fact that, even where there are well-developed safety systems, the work requires close examination in order to address and eliminate to the maximum extent possible all the risks that may arise. In relation to specific deterrence, there is substance in the defendants' submission that their prior unblemished records in this dangerous industry, having regard to the large number of demolitions undertaken, combined with the steps taken to improve the safety systems following this accident, should result in specific deterrence having a reduced role in the setting of an appropriate penalty. 20The defendants produced some financial records and requested that they be considered in the context of the provisions of s 6 of the Fines Act 1996. The defendants accepted that the financial material provided was not comprehensive nor was it totally up-to-date but that, while it demonstrated a turnover of some millions of dollars, there was also a period where losses were incurred. While incomplete, those financial records indicate that Mr Bakhos has provided significant financial support to the company and it carries in its books a substantial liability to him. The documents, however, do not give any comprehensive picture of Mr Bakhos' assets but, as indicated by counsel for the defendants, this material was provided to generally address the provisions of s 6 of the Fines Act and was not presented to ground a claim of impecuniosity. The Court was requested to approach the matter on the basis that, despite its turnover, this is a small company with considerable running costs and financial obligations. Mr Bakhos' taxation returns indicated that he was taking a salary of approximately $50,000 per annum suggesting that large amounts were not being channelled from the company to Mr Bakhos by way of salary or director's fees. It was submitted that this was a suitable case in which the Registrar might approve a scheme whereby the penalty is paid over a period of time: the Registrar may, however require further information before doing so. In the very general way in which this financial information was placed before the Court, it will be considered in the setting of an appropriate penalty: a penalty will not be imposed that is likely to have a crushing effect on the defendants. 21There are a number of subjective factors that require consideration. Both defendants are first offenders and are entitled to the leniency accorded to that status. Although the company has not been in operation for a long period it has conducted a large number of demolitions in an inherently dangerous industry and its record, therefore, is to be regarded as a good safety record. The company had in operation a well-developed safety system that was shown, unfortunately, to have some defects. Steps have been taken by the defendants to address that situation. The Court accepts the prosecutor's submission that, having regard to the history of the matter, the pleas are to be regarded as early pleas carrying the highest level of discount. As recorded earlier in reciting the background to these proceedings, the defendants had initially entered early pleas of guilty, but, as has occurred in a number of other cases, sought to alter their position once the decision of the High Court in Kirk raised the prospect that pleading difficulties could arise in occupational health and safety prosecutions. Those difficulties were addressed by way of amendment and when the Court granted the amendments sought by the prosecutor, the defendants again promptly entered pleas of guilty to the Amended Applications for Order. Having regard to that history, a 25 per cent discount will be allowed for each defendant for what can properly be regarded as early pleas. 22There are other mitigating factors. Having regard to the entirety of the evidence, the Court accepts that the defendants have accepted their responsibility for this accident and have demonstrated remorse and contrition. Mr Korie's family were provided with support as described in Mr Bakhos' affidavit. Importantly, the prosecutor accepted that there was co-operation with the WorkCover Authority throughout its investigation by each defendant. These additional matters will be taken into account in mitigation of the penalty to be imposed. ORDERS 23Having regard to the variety of matters raised by the parties, the Court makes the following orders: (a) in relation to City Civil Pty Ltd: (i) City Civil Pty Ltd is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 1016 of 2009 in relation to which it entered a plea of guilty; (ii) the defendant is fined the sum of $100,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum agreed or, if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004. (b) in relation to Peter Bakhos: (i) Peter Bakhos is found guilty of a breach of s 8(1) by operation of s 26(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 1015 of 2009 in relation to which he entered a plea of guilty; (ii) the defendant is fined the sum of $10,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum agreed or, if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004.

AGREED STATEMENT OF FACTS

1. At all material times the Prosecutor was an Inspector duly appointed pursuant to Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("Act") and empowered under Section 106 (1)(c) of the said Act to institute proceedings in the within matter.
2. At all material times City Civil Pty Ltd [ACN 118 275 344] was a corporation whose registered office is situated at C/- NFS & Accounting Pty Ltd located at Unit 13, 338-340 Darling Street, Balmain in the State of New South Wales ("City Civil").
3. At the material time PETER BAKHOS ("Bakhos") was a director of the corporation, City Civil Pty Ltd [ACN 118 275 344].
4. At all material times, City Civil's undertaking included the demolition of structures, excavation and asbestos removal.
5. City Civil currently holds, and held at the time of the incident, a restricted (class DE2) demolition licence number 204443DE2. Pursuant to clause 325 of the Occupational Health and Safety Regulation 2001, it is a condition of a licence that, during the carrying out of the licensed work, a person holding appropriate qualifications in relation to the licensed work (whether or not the holder of the licence) must supervise the carrying out of the work.
6. The nominated supervisors for City Civil listed on its demolition licence at the date of the incident were Peter Bakhos and Anthony Khoury.
7. At all material times, City Civil was contracted by the owners of the site, Mr and Mrs Peter Collis, to demolish the structures on the site - a single storey domestic dwelling and a detached garage.
8. At all material times, City Civil employed Mr Lewis Korie (date of birth: 5 September 1981).
9. Mr Korie was engaged by City Civil to undertake work associated with demolition. Mr Korie commenced employment with City Civil on 20 August 2007, being the day before the incident. However, Mr Korie did not undertake any demolition work at the site on 20 August 2007 due to the wet weather. Mr Korie commenced work at the site on 21 August 2007, being the date of the incident.
10. At all material times, City Civil also employed: (a) Peter Bakhos, as a working Director. (b) Kevin Hanna, as a Labourer. Mr Hanna had not undertaken any formal demolition training. (c) Elya Elia, as a Leading Hand. Mr Elia was also designated as the Occupational Health and Safety Consultant. Mr Elia had not undertaken any formal demolition training. (d) Joshua Bakhos, as a Site Supervisor. Joshua Bakhos had undertaken formal demolition training. However, Joshua Bakhos was not nominated as a supervisor for the purposes of demolition work on City Civil's demolition licence. Joshua was assisting the nominated Supervisor for demolition work on City Civil's projects. At the date of the Incident Joshua was aged 19 years. (e) Anthony Khoury as a Supervisor, nominated for the purposes of demolition work on City Civil's demolition licence. The Incident
11. At the commencement of City Civil's work, the site at 60 Denistone Road, Eastwood comprised: a brick dwelling house with a peaked tiled roof and a rear section with a flat section of metal roofing (approximately 4.5 metres wide); a detached garage; the garage was to the left of the house (when viewed from Denistone Road) and was separate and set back from the dwelling; and a driveway, which ran from the street to the detached garage.
12. The detached garage was demolished by City Civil on or about 17 August 2007.
13. City Civil had commenced demolition work on the dwelling house on 20 August 2007 (the day before the incident). That work had involved the internal 'strip out' of the dwelling. Mr Korie was not present at the site on that day.
14. Between approximately 6:40am and 7:00 am on 21 August 2007, Mr Korie, Mr Elia, Mr Hanna and Mr Joshua Bakhos arrived at the site to undertake demolition work on the dwelling.
15. It was a cold clear morning and there was dew on the ground.
16. The work to be performed on 21 April 2007, included the stripping of roof tiles from the roof of the dwelling.
17. Mr Korie, Mr Elia, Mr Hanna and Mr Joshua Bakhos went through a site induction prior to commencement of work.
18. There was no scaffold or roof rails in place around the leading edges of the roof of the dwelling to prevent persons falling from height. The height of the edge of the roof from the ground below was approximately 2.5 to 4 metres. The risk assessment carried out by City Civil for such standard single storey dwelling roof removal was that a harness and lanyard system was the appropriate fall arrest system to use.
19. On the morning of 21 August 2007, the system of work adopted was that Elya Elia put on his harness and climbed the ladder which had been secured leading into an access hole located in the bathroom and entered the roof space.
20. Mr. Elia then removed the roof tiles to provide an access to the roof.
21. The external exit of the access hole was located close to the edge of the dwelling, on the driveway side. The roof access point was located at a point in the roof that was less than 2 metres from the unprotected leading edge of the roof.
22. The roof access point was located on a sloping part of the roof immediately adjacent to the unprotected edge of the roof.
23. No consideration was given by City Civil or Mr Elia to the provision of a safe anchor point for employees to attach a retractable lanyard and harness located at the roof access point.
24. City Civil did not require that its employees wear a fall arrest device which was secured to an appropriate anchor point, prior to proceeding from the roof access point onto the roof of the dwelling. The requirement was that a fall arrest device was required to be worn when any employee proceeded onto the roof to undertake work.
25. Mr Elia then proceeded to crawl up to the peak of the roof and removed the ridge capping and one row of tiles.
26. Mr Elia stated that when he was on the roof, he moved upward towards the ridge capping at the roof peak and removed tiles along the way and down towards the back of the dwelling to the flat corrugated iron roof of the extension at the rear of the dwelling.
27. While at the peak of the roof, Mr Elia called Mr Korie to come up to the roof. While Mr Elia was in the process of anchoring his lanyard to the ridge board of the roof he saw Mr Korie coming up to the roof. Mr Elia checked with Mr Korie that he was comfortable about getting onto the roof. Mr Elia then proceeded to anchor himself to the ridge.
28. There is conflicting evidence as to whether Mr Korie was wearing a harness at the time he climbed on to the roof. Mr Elia states that he provided Mr Korie with a harness and lanyard prior to him going up to the roof and that Mr Korie was wearing the harness. Mr Korie did not attach a retractable lanyard and harness to an anchor points at the roof access point prior to climbing onto the roof.
29. Mr Elia told Mr Korie to follow the pathway he had made on the tile roof to the corrugated iron roof. Mr Korie did not wait at the internal exit of the roof access point until a retractable lanyard had been attached to a harness and attached to the anchor points at the apex of the roof by Mr Elia.
30. City Civil did not require its employees, including Mr Korie 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.
31. Mr Elia states that he (Elia) then turned around to attach his own safety harness to an anchor point on the ridge capping at the apex of the roof, with a retractable lanyard. Mr Elia said to the police on 28 August 2007 "I had been doing this for not even five minutes when I turned around" and later on 21 September 2007 to a WorkCover Inspector said "turned around for about 5 seconds then turned back" he observed that Mr Korie was not on the roof.
32. Mr Elia called out 'Lewis' and saw Mr Korie lying on the ground.
33. No one saw Mr Korie fall off the roof. It appears that between approximately 7:20am and 7:36am on 21 August 2007, Mr Korie fell from the roof of the dwelling to the ground.
34. The area of the ground onto which Mr Korie fell was a drive way which had various demolition debris on it including cement, dirt, bits of brick and tree.
35. Upon realising that Mr Korie had fallen, Mr Elia called out to other workers that "Lewis is on the floor". Mr Elia then climbed down from the roof. During this time, Mr Hanna and Mr Joshua Bakhos, who were both already at ground level, ran to Mr Korie's assistance. Mr Hanna subsequently ran to Ryde Hospital - across the road from the site - while Joshua Bakhos rang for an ambulance.
36. Mr Elia approached Mr Korie and saw that he was trying to get up. Mr Elia and Joshua Bahkos attempted to stabilise Mr Korie to prevent him from getting up until the ambulance arrived.
37. Michelle Muscat and Jace Dwyer (who resided in the next door premises) observed the scene where Mr Korie had fallen. They both stated that they did not observe a harness being worn by Mr Korie.
38. An ambulance also attended the scene of the incident at approximately 7:44 am and attended to Mr Korie. Mr Korie was then transported to Royal North Shore Hospital and arrived at approximately 8:20am.
39. At the Royal North Shore Hospital, Mr Korie was diagnosed with traumatic head injury and fractured ribs.
40. As a consequence of his injuries, Mr Korie died six days after the incident on 27 August 2007 at 6:40pm at the Royal North Shore Hospital.
41. On 28 August 2007, Inspector Nikolovski attended the site to do an inspection. At the time of the inspection, the dwelling was fully demolished. The system of working at heights and fall protection systems prior to the incident
42. According to City Civil, the system of work in relation to fall prevention whilst working at heights at the site was to use a safety harness and retractable lanyard system attached to a point on the ridge capping at the apex of the roof.
43. City Civil's system of work did not include the provision of roof rails or scaffolding around the leading edge of the roof whilst employees were accessing the roof and/or undertaking the work of demolishing the roof.
44. City Civil's system of work did not include 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.
45. Mr Korie was not attached to a secure anchor point while he was accessing the roof or whilst he was on the roof. Information, instruction, training and supervision
46. City Civil had a Site Induction form. This was signed by all those who were present at the site on the day of the incident, including Mr Korie.
47. City Civil also had a generic Safe Work Method Statement and Risk Assessment document for demolition work. A Safe Work Method Statement and Risk Assessment document was signed and dated by all those who were present at the site on the day of the incident, including Mr Korie, however his first name was spelt 'Louis' instead of 'Lewis'.
48. City Civil also had a generic Safety Plan for demolition work which contained a Risk Assessment Part 1 & 2. A copy of this document which was also signed and dated by all those who were present at the site on the day of the incident, including Mr Korie. This document was signed by Peter Bakhos and dated 21 August 2007. However, Peter Bakhos was not on the site on 21 August 2007 at the time this document was apparently discussed with workers. Peter Bakhos states that he signed this document after the incident.
49. The Safe Work Method Statement, Risk Assessment and Safety Plan identified the need for City Civil's employees to be attached to a secure anchor point while they were accessing or on the roof, but employees were exposed to the risk of falling from heights between leaving the roof access and reaching the anchor points.
50. Prior to commencing work on the day of the incident, Mr Elia stated he conducted a toolbox talk and a safety walk around the dwelling to identify hazards and safe working procedures.
51. Mr Elia states that he showed Mr Korie how to use the safety harness by grabbing the lanyard and a piece of timber and wrapping it around then locking it in.
52. At the time Mr Elia was apparently showing Mr Korie how to attach the harness, Joshua Bakhos, the site supervisor, was approximately 3 metres away but did not hear the conversation between Mr Elia and Mr Korie.
53. City Civil relied solely upon information from Mr Korie as to his construction and demolition work experience in Greece prior to his arrival in Australia and did not undertake any other inquiries to ensure he had relevant training and experience before engaging him in demolition work.
54. At no time did Joshua Bakhos inspect the roof at the site to ascertain if it was safe for employees to access the roof. Joshua Bakhos also did not know if there was a safe anchor point on the roof.
55. City Civil did not identify in the Safe Work Method Statement, and in the 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.
56. City Civil did not provide Mr Elia and Mr Korie with information and instruction that they should 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.
57. City Civil did not provide 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.
58. City Civil did not provide 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 attaching to the anchor points at the apex of the roof.
59. City Civil did not provide 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.
60. City Civil did not provide Mr Elia and Mr Korie with training in how to identify a secure anchor point while they were accessing or working on the roof. Supervision
61. Peter Bakhos and Anthony Khoury were not at the site while the demolition work was being carried out on the date of the incident and did not inspect the roof at the site or undertake a risk assessment. Joshua Bakhos was the acting supervisor on site at the time of the incident.
62. City Civil did not ensure that a supervisor, nominated or authorised under it's Demolition licence, undertook an inspection of the roof of the dwelling to ascertain if it was safe for employees to access the roof. Joshua Bakhos was the acting supervisor on site at the time of the incident. The Defendant's Demolition licence document did not nominate Joshua Bakhos as a supervisor. Joshua Bakhos was qualified as a Demolition supervisor. It is agreed that neither of the two persons, Peter Bakhos and Anthony Khoury who were nominated in writing inspected the roof. Joshua Bakhos had not inspected the roof.
63. City Civil did not ensure that a supervisor, nominated or authorised under it's Demolition licence, undertook an inspection of the roof of the dwelling to ascertain the location a safe anchor point on the roof to anchor a lanyard and harnesses system. However, Joshua Bakhos was the acting supervisor on site at the time of the incident.
64. City Civil did not require Mr Korie to provide evidence (other than his own words) as to his prior construction work experience in Greece.
65. City Civil did not undertake any other enquiries to ensure that Mr Korie had relevant training and experience before engaging him in demolition work. The system of working at heights following the incident
66. Following the incident, City Civil has not changed its systems of work in relation to fall prevention for working at heights, in particular on single storey residential premises. That is, City Civil continues to use harnesses and lanyards whilst undertaking demolition work on single storey residential dwellings, rather than using more effective control measures where appropriate, such as edge protection.

Amendments 10 February 2012 - The word "amended" added to the final sentence in paragraph 5 so that it now reads:"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: ..." Amended paragraphs: 5 11 April 2014 - (a)(iii) and (b)(iii) amended to read: "the defendant is to pay the costs of the prosecutor in a sum agreed or, if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004." Amended paragraphs: Coversheet/Decision 11 April 2014 - Amended to read: "the defendant is to pay the costs of the prosecutor in a sum agreed or, if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004." Amended paragraphs: 23(a)(iii) 11 April 2014 - Amended to read: "the defendant is to pay the costs of the prosecutor in a sum agreed or, if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004." Amended paragraphs: 23(b)(iii) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2014