Inspector Nikolovski v Lankry

Industrial Relations Commission (NSW)|2013-05-28|Before: Backman J, Ms P

Judgment 1Alex Avi Lankry pleaded guilty to two offences under s 8(2) by virtue of s 26(1) and under s 10(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 (OHS Act 2000). The offences concern an accident which took place at a construction site (the premises) owned by Domain Apartments (Sydney) Pty Ltd. Details of the accident are set out in one of my earlier judgments in Inspector Steven Nikolovski v Alex Avi Lankry [2011] NSWIRComm 34; (2011) 206 IR 395 at [7] (extracted below): At the premises a two-level construction of commercial premises with two basement levels was being undertaken. Upon completion, the building was to be used as an Officeworks retail outlet. On 31 October 2006, a hollow core re-enforced masonry block wall collapsed onto a funeral parlour which was located next door to the premises. The collapse of the masonry block wall caused considerable damage to the funeral parlour and injured Mr Bowden, an employee of the funeral directors, who was inside the funeral parlour at the time. Mr Bowden sustained soft tissue injuries to his head and neck and suffered concussion. 2Particulars of the risk to safety are described in both charges in the following way: Persons who were not employees of the corporation were put at risk of injury from the collapse of a masonry block wall constructed on the southern edge of the concrete slab of level 1 of the premises. 3"The corporation" is identified in the s 8(2)/s 26(1) charge as Sydney Metro Projects Pty Limited (Metro). It is alleged in the charge that the defendant was concerned in the management of Metro at the time of the offence. Metro, at that time was the builder, supervisor and contract administrator in relation to the construction of the commercial premises. Domain Group Services Pty Limited (Domain) is the corporate entity the subject of the s 10(1)/s 26(1) charge. At the time of the offence the defendant was the sole director and shareholder of that entity. According to the charge, Domain was the developer and principal contractor of the construction. Domain is alleged to exercise its control of the premises, "through its ability to appoint, direct, supervise, and pay the builder and supervisor in relation to the construction". It is also alleged to exercise its control, "through its ability to participate in and make decisions in relation to the design, direction and timing of work being undertaken on the premises and to agree upon modifications to the plans". 4The particulars of Domain's "failures" are set out in the s 10(1)/s 26(1) charge as follows: (i) The corporation failed to ensure that systems of work and the working environment at the premises, in particular the masonry block wall constructed on the southern edge of the concrete slab of level 1 of the premises, facing Thornleigh Street, were safe and without risk to health, in that it failed to: (i) ensure that measures were put in place to prevent the structural collapse of the re-enforced hollow core masonry block wall, including: (a) ensuring that temporary bracing was provided for the re-enforced hollow core masonry block wall as required by Australian Standard 3700-Masonry Structures. (b) ensuring that the re-enforced hollow core masonry block wall was core filled with concrete when it reached an approximate height of 2.8 metres. (c) ensuring that the re-enforced hollow core masonry block wall was constructed with engaged piers located at intervals of not greater than 4000mm; (d) ensuring that the re-enforced hollow core masonry block wall was not constructed to full height without core filling before being constructed to its full height. (ii) ensure that a full perimeter scaffold was erected around the building and in particular up to Level 1, to prevent items being ejected from the site, prior to work being permitted in respect of the block laying; (iii) ensuring that falling object protection such as a cantilevered scaffold enclosed in mesh and covered in shade cloth designed to incorporate wind loading was installed on the southern side of the wall to prevent objects being ejected from the premises; 5The particulars of Metro's "failures" in the s 8(2)/s 26(1) charge are substantially similar to the "failures" particularised in the charge against Domain. A further set of "failures" alleged against Metro, is particularised as follows: (h) The corporation failed to provide and maintain a safe system of work for the construction of re-enforced hollow core masonry block walls on Level 1 of the premises, in that the corporation failed to ensure that the following measures were undertaken: (i) have an adequate occupational health and safety management plan in relation to construction working (sic) being performed on site, which assessed the hazards and risks associated with the construction of re-enforced hollow core masonry block walls at the premises and set out the control measures to eliminate or reduce the risks identified; (ii) required its block laying sub-contractors to provide Safe Work Method Statements in relation to the task of constructing re-enforced hollow core masonry block walls being performed on site; (iii) required its block laying sub-contractors to construct re-enforced hollow core masonry block walls in accordance with engineering plans; (iv) ensure that the re-enforced hollow core masonry block wall was core filled with concrete when the wall was partially completed; (v) prevent the wall being constructed to maximum built height prior to core filling with concrete to reinforce the walls;

Agreed facts 6Some time in 2005, Domain entered into an arrangement with Officeworks to construct the building. The building was to be leased to Officeworks and used as a retail outlet at the premises. The property adjoining the premises was owned by the Walker Family Trust and traded as Albert & Meyer Funeral Directors. 7On 7 September 2005, Domain entered into an agreement with Metro under which Metro was appointed as the builder and supervisor of the development. The agreement, called, "the Schedule of Terms", required Metro to report directly to Mr Lankry on administrative issues and, in his absence, to Jason Malouf. In accordance with the Schedule of Terms, Metro was to provide tax invoices for its services to Domain. Metro's undertaking in relation to the development was set out in the Schedule of Terms as follows: ... foreman/supervise any projects presented by the Company [Domain Groups Services] or any Domain Group company, site inspections, supervise and certify minor works/steelworks, and everything related to the construction of the relevant project. 8Mr Lankry's role at Metro included financial and operational responsibilities. Part of his responsibilities involved administering the funds provided to Metro by Domain as progress payments for the construction of the development. Mr Lankry's role at Metro also included ensuring that contractors and suppliers were paid in a timely fashion for works as each stage of the development was completed. 9Mr Lankry, on behalf of Domain, remitted payments of the tax invoices to Metro by way of electronic funds transfer. As the representative of Domain, he attended site meetings on a weekly basis while the construction was in progress. He also attended site meetings which were held from time to time with Officeworks representatives, as well as sub-contractors during which the progress of the development during 2006 was the subject of discussion. Prior to the accident, Mr Lankry last attended a site meeting on 18 October 2006. Otherwise, he attended at the premises between 18 October 2006 until the date of the accident. 10Raphael Dracopoulos was a director of Metro between the period 11 May 2005 until 29 January 2007. On 3 June 2005, Mr Dracopoulos, in his capacity as a director and secretary of Metro, executed a general power of attorney appointing Mr Lankry as his attorney. Under that instrument, Mr Lankry had the power to exercise, "all and any decision with regard to all and any matter in respect of (Metro)". From 7 September 2005 to September 2006, Mr Dracopoulos held the builder's licence under which Metro undertook the building work for the development. During the same period, Metro subcontracted various works with regard to the development to other contractors unrelated to Domain. 11Pursuant to a subcontract agreement which Metro entered into on 4 September 2006, George Moshi replaced Mr Dracopoulos as the builder of the development. Mr Moshi was also appointed as supervisor and engineer of the development under the terms of agreement. He commenced his duties at the premises on 11 September 2006. Under the Subcontractor's Schedule of Terms dated 4 September 2006, Mr Moshi was required to: (a) project manage and supervise the building works in relation to the Development. This included acting as the Site Supervisor, including supervision of various tradespersons and liaising with the suppliers needed to construct the premises and overseeing the day to day activities on the Premises. (b) report to Mr Lankry as the Principal. This included in relation to Administrative Issues. 12Mr Moshi ceased work at the premises in about the second week of October 2006. From that time, his role at the site was performed by Tony Constantinos who was employed by DFV Services Pty Ltd (DFV). On 10 October 2006, DFV entered into a subcontract agreement with Metro to perform the role of site supervisor. Mr Constantinos was required to report to Mr Lankry as the Principal on administrative issues and in Mr Lankry's absence to Mr Malouf. Under the terms of the agreement, Mr Constantinos was required to supervise the project and building works in relation to the development. In addition to his duties as site supervisor this included overseeing the day to day activities at the premises. 13From 7 September 2005 to September 2006 Mr Dracopoulos, a qualified engineer, worked for R Balas Engineering Pty Ltd and in that capacity he provided structural engineering services to Metro in relation to the building works for the development. He ceased providing those services after September 2006. 14From about 20 September 2006, Metro assumed the role of Contract Administrator for the development. Domain, as the developer and principal contractor, continued to exercise control of the premises in relation to the work performed. Monthly meetings attended by Officeworks, Metro, Domain and major contractors working on the development were held on site. During these meetings, the attendees would determine priorities and agree upon modifications to engineering plans. According to the Agreed Facts, all the attendees were involved to varying degrees in deciding the design, direction and timing of work undertaken at the premises.

Construction of the hollow core masonry block wall. 15The Agreed Facts set out the circumstances in existence prior to and at the time of the construction of the hollow core masonry block wall at the southern side of the building, a large section of which collapsed onto part of the adjoining funeral parlour on 31 October 2006: The initial design and engineering plans for the commercial building at the premises required the use of pre-cast concrete walls for level 1 of the development. In or about mid 2006, a decision was made by Domain to amend the original design of the development and construct reinforced hollow core masonry walls on level 1 instead of using pre-caste concrete walls. This decision was taken partly to avoid the requirement to utilise a crane to lift the precast panels into place from the surrounding roads. On 4 September 2006, JAS Engineers prepared engineering drawings for the use of reinforced concrete blockwork walls as an alternative to the precast concrete panels structure in the earlier engineering plans from Michael Ell Engineers. Metro subcontracted Minfen Pty Limited ('Minfen') pursuant to a contract dated 28 September 2006 to supply labour, plant and equipment for the provision of block laying services and associated works at the premises, in particular in relation to the construction of reinforced hollow core masonry block walls on level 1 of the development. In or about October 2006, Minfen commenced the construction of the hollow core reinforced masonry block walls on the concrete slab of level 1 of the premises. Initially, this work was conducted under the supervision of the site supervisor builder Mr Moshi and following the termination of his contract under the supervision of the site supervisor, Mr Constantinos. Part of the masonry block wall was constructed on the southern edge of the concrete slab of level 1, facing Thornleigh Street. The wall was a single skin wall, built to a height of approximately 4.7 metres at its highest point (23 courses) on the southern edge of the concrete slab of level 1. The total length of the wall on the southern side, in its constructed state, was approximately 41.825 metres. The wall design incorporated engaged piers. The engineering plan details for the construction of the wall required the engaged piers to be located at intervals of 4000mm. The engaged piers in the wall as constructed by Minfen, prior to its collapse, were located at intervals significantly greater than the 4000mm required by the engineering plans. According to Bing Qi Cheng (Mr Cheng), Director of Minfen, the engineering plans for the reinforced concrete block wall had not been provided to Minfen prior to or during the construction of the wall. Mr Cheng knew that the reinforced concrete block wall on the first floor should have been filled with concrete when it had reached approximately two metres in height. Mr Cheng discussed the requirement to core fill the block wall with Mr Lankry, when it was approximately 2 metres in height. Minfen continued to build the wall past 2 metres in height. The reinforced concrete block wall on level 1 had been built with horizontal and vertical bars. When the wall had reached a height of approximately 2.8 - 3.0 metres, it should have been core filled with concrete to provide stability for the wall. At the point in its construction where it had reached 2.8 - 3.0 metres, the then premises supervisor, Mr Moshi, informed Mr Lankry that there was a need to core fill the block work with concrete. On 18 October 2006, Mr Lankry, as the representative of Domain, attended a site meeting with representatives of OfficeWorks and subcontractors to discuss the progress of the development. During that meeting Mr Lankry advised that all blockwork on the first floor of the premises was to be core filled. Mr Lankry was tasked with ensuring that this action was undertaken. In the week of 9 October 2006, Mr Constantinos observed that the concrete block wall on the southern edge of the first floor had been constructed to its full height and had not been core filled with concrete and that it had not been braced. Mr Constantinos subsequently raised these issues with Mr Lankry. Mr Lankry advised Mr Constantinos that the wall would be core filled with concrete shortly. The concrete pour was due to take place on 1 November 2006. In or about October 2006 a concreter attended at the premises and core filled the wall on the north side of Level 1. Mr Lankry and Mr Constantinos were on site when this wall was core filled. The wall was core filled when it was at its full height. At no stage prior to the wall collapse was the hollow core masonry block wall on the southern side of Level 1 of the premises core filled with concrete. The masonry walls were also built the full height without the returns or cross walls provided for in the JAS Engineering plans. The wall had two returns. One from the south east corner, heading in a northerly direction away from the incident scene. This return wall was approximately 1,450 mm in length and 190 mm in width and was constructed to a height of approximately 4 metres (20 courses). The south west return headed in a northerly direction. It was approximately 1 metre in height (5 courses). Minfen failed to adequately brace the wall during its construction. The only temporary bracing in place consisted of a single timer plank that had been installed against the base course. This was supported by diagonal bracing. This bracing was meant to support the entire length of the wall during the concrete pour to provide "clean out" holes. This bracing did not comply with the requirements for temporary bracing as set out by the Australian Standard 3700-Masonry Structures. Erection of the scaffolding 16The Agreed Facts also set out the circumstances in relation to the erection of the scaffolding around the building, and the state of the scaffolding at the time of the accident: Metro retained Combined Scaffolding Pty Ltd ('Combined Scaffolding') to supply the scaffolding for the premises. Combined Scaffolding quoted for scaffolding to be supplied all around the perimeter of the premises. During the period prior to Minfen undertaking construction of the wall, scaffolding had been supplied and erected by Combined Scaffolding pursuant to their contract dated 31 August 2006 which stated "We comply with Workcover and any site requirements under council and any relevant authority or act". The scope of the works for the scaffolding contract provided for "Suspended scaffold on South Elevation and Narrow scaffold on South Side only" and "perimeter to be approximately 119M long". However, Combined Scaffolding did not install the full perimeter scaffolding around the building up to and extending past the concrete slab at level one of the building. Combined Scaffolding installed scaffolding at the south eastern section of the wall. However, this scaffolding did not extend along the full length of southern side of the concrete slab of level 1 of the premises. The scaffolding on the south eastern section of the wall was used by persons, to perform work on the construction of the building on the premises. Combined Scaffolding did not install external scaffolding for the full length of the southern side of the premises. Michael Bolton from Albert and Meyer Funeral Directors stated that the scaffolders internally inspected the Albert and Meyer garage roof about a week before the incident. The scaffolders informed him that the garage roof was not strong enough to support the scaffold. Combined Scaffolding did not install falling object protection installed on the southern side of the wall to prevent objects from being ejected from the premises. Domain and the site supervisor did not ensure the premises had full perimeter scaffolding erected around the building and in particular up to Level 1, to prevent items being ejected from the site, prior to work being permitted in respect of the block laying. Domain, Metro and the site supervisor did not ensure that the premises had falling object protection such as a cantilevered scaffold enclosed in mesh and covered in shade cloth designed to incorporate wind loading installed on the southern side of the wall to prevent objects being ejected from the premises. The accident 17The events which gave rise to the collapse of the wall on 31 October and the causes of the collapse are also set out in the Agreed Facts: At approximately 5pm on 31 October 2006, a large section of the hollow core reinforced masonry block wall located on the southern edge of the concrete slab at level 1 of the premises collapsed on to part of the building of the Funeral Parlour. A wind load pressure was placed on the wall. As the wall had inadequate bracing or support the restraint at the high end of the wall, the wind load pressure induced a movement at the base of the wall. This resulted in flexural failure at the base of the wall. This occurred due to the mortar bond between the blocks not having enough capacity at the relevant section through the wall to resist the induced movement due to wind pressure. It was subsequently determined by Diaa Karaali (Mr Karaali) a civil and structural engineer that the likely cause of the collapse of the wall was that it failed under wind loading. At the eastern end of the slab a section of the wall remained standing partially resting against the external scaffold. The wall at level 1 of the premises had no shielding from the neighbouring buildings at that height. It was therefore subject to wind from all directions. The collapse of the masonry block wall caused damage to the property of the Funeral Parlour, causing the partial collapse of a free standing garage. At the time of the collapse of the wall, an employee of the Funeral Directors, Warren Craig Bowden ('Mr Bowden'), was inside a part of the Funeral Parlour on to which the block wall collapsed.

Objective factors 18The system of work in place at the premises on the day of the offences was patently unsafe. Several factors contributed to this. First, Minfen failed to follow the engineering plans for the construction of the wall. The plans required the engaged piers to be located at intervals of 4000mm. Minfen constructed the engaged piers in the wall at intervals greater than 4000 mm. The Court has some difficulty accepting Mr Cheng's statement that the engineering plans had not been provided to Minfen prior to or during the construction of the wall. Minfen was subcontracted in September 2006 to supply the labour, plant and equipment for the construction of the wall which included the engaged piers. It is improbable that if the plans had not been made available to Minfen, it would not have asked for them or at least made some enquiry as to the proposed method of construction. Site meetings were held regularly at the premises where such matters were the subject of discussion. Mr Lankry, representing both Domain and Metro, was in attendance at these meetings. 19Secondly, once the wall had reached a height of approximately 2.8 to 3.0 metres, it should have been core filled with concrete to provide stability for the wall. Mr Cheng was aware of this and discussed the requirement with Mr Lankry when the wall had reached a height of 2 metres. Minfen, however, continued to construct the wall past its height of 2 metres. When the wall reached a height of about 2.8 to 3.0 metres, Mr Moshi advised Mr Lankry of the need to core fill the block work with concrete. On 18 October 2006, Mr Lankry, in his capacity as the representative for Domain, attended a site meeting and advised the attendees that all blockwork on the first floor of the building had to be core filled. Despite this, the southern wall was not core-filled at the time of the accident. 20Thirdly, on 9 October 2006, Mr Constantinos also informed Mr Lankry that the wall on the southern edge of the building had reached its full height and had not been core-filled. At the same time, Mr Constantinos told Mr Lankry that the wall had not been braced. According to the Agreed Facts, Minfen failed to brace the wall adequately during its construction. There was temporary bracing in place which consisted of a single plank of timber which had been installed against the base course. This bracing did not comply with the requirements of temporary bracing, set out in the relevant Australian Standard. 21Fourthly, the walls of the building at full height lacked returns or cross walls as provided in the engineering plans. 22Fifthly, Combined Scaffolding, retained by Metro, did not install full perimeter scaffolding around the building, up to and extending past the concrete slab at level one of the building. Nor did Combined Scaffolding install external scaffolding for the full length of the southern side of the building. In addition, Combined Scaffolding did not install falling object protection on the southern side to prevent objects from being ejected from the building. Domain, Metro and the site supervisor failed to ensure the perimeter scaffolding was erected around the building up to level one in particular. There was a further failure on the part of the corporate entities and the site supervisor to ensure that the building had falling object protection such as cantilevered scaffolding as suggested in the further amended charges. 23These failures, which are reflected in the further amended charges to which Mr Lankry has entered pleas of guilty, gave rise, in combination, to an obvious, foreseeable and serious risk to the safety of persons, realised on 31 October 2006 when the masonry block wall on the southern side of the building collapsed. 24Other aspects of the system of work in place at the time of the accident also reveal serious deficiencies. These aspects which are reflected in Mr Lankry's pleas of guilty as the person concerned in the management of Metro to the further amended charge under s 8(2)/s 26(1) and are set out in the Agreed Facts by reference to the following various omissions by Metro, Minfen, Combined Scaffolding and the site supervisor: Minfen did not supply a Safe Work Method Statement ('SWMS') in relation to the task of constructing the re-enforced hollow core masonry block walls being performed on site. Minfen failed to develop or provide to its workers a SWMS for the block laying works prior to commencing work on the wall or prior to the wall collapse on 31 October 2006. On or about 29 September 2006, Minfen prepared a SWMS in relation to work they were to perform on the premises. This was a generic document prepared by the Housing Industry Association and was titled "Safety Plan - Cabinetry Installation - Trade Contractor". Neither Metro, the site supervisors, Minfen or Combined Scaffolding ensured that measures were put in place to prevent the structural collapse of the reinforced hollow core masonry block wall that was under construction on level 1 of the site. Neither Metro, the site supervisors, Minfen or Combined Scaffolding ensured that overhead protection was installed on the southern side of the wall to prevent objects being ejected from the premises. Neither Metro, the site supervisors or Minfen ensured that temporary bracing was provided for the reinforced hollow core masonry block wall as required by Australian Standard 3700-Masonry Structures. Neither Metro, the site supervisors or Minfen ensured that the reinforced hollow core masonry block wall that was under construction on level 1 was core filled at an appropriate height and was not constructed to full height without adequate returns, cross walls or core filling. Metro did not have an adequate occupational health and safety management plan in relation to construction working being performed on site, which assessed the hazards and risks associated with the construction of re-enforced hollow core masonry block walls at the premises and set out the control measures to eliminate or reduce the risks identified. 25These deficiencies also gave rise to an obvious, foreseeable and serious risk to the safety of persons which caused the collapse of the wall on 31 October 2006. 26Simple, appropriate safety measures were readily available to Mr Lankry, in his role at Domain and Metro, which would have eliminated, or minimised, the risk to safety. If such measures had been taken they would have prevented the structural collapse of the wall. They include: a. ensuring that temporary bracing was provided for the re-enforced hollow core masonry block wall as required by Australian Standard 3700-Masonry Structures; b. ensuring that the re-enforced hollow core masonry block wall was core filled with concrete when it reached an approximate height of 2.8 metres; c. ensuring that the re-enforced hollow core masonry block wall was constructed with engaged piers located at intervals of not greater than 4000mm; d. ensuring that the re-enforced hollow core masonry block wall was not constructed to full height without core filling. 27An additional factor which demonstrates the objective seriousness of the offences is that the collapse of the wall (although it resulted in relatively minor injuries to Mr Bowden), could have caused, by reason of the failures outlined above, very serious injuries to Mr Bowden or to any other persons present at the time in the adjoining building. 28In the Court's view this trilogy of factors illustrates the objective seriousness of the offences to which Mr Lankry pleaded guilty.

Role of other entities 29The parties devoted much of their submissions to the issue of the complicity of other entities at the premises in the circumstances of the offences. I have carefully considered the competing submissions of the parties in this regard and have formed a view as to the respective roles or culpabilities of those other entities by reference to Mr Lankry's role in the circumstances which gave rise to the offences of 31 October 2006. 30The prosecution submitted that the role of Domain facilitates a conclusion that its contribution to the creation of the risk and its failure to address the risk was "possibly slightly" less than Metro's contribution. According to the Agreed Facts Domain was the developer and principal contractor at the site and therefore had, by virtue of its role as principal contractor, overall supervision of, and responsibility for, the subcontractors at the site. Metro, under the Schedule of Terms, had a more direct responsibility at the premises as supervisor of the projects presented by Domain. It was required under that instrument, to conduct site inspections, supervise and certify minor works/steelworks, "and everything related to the construction of the relevant project". The further amended charge attributes a much greater role at the premises to Metro by reason of the additional "failures" alleged against it. Given these matters, it is my view that Metro's culpability was greater than Domain's culpability by reason of its more direct and expanded role in safety matters at the site. As the person concerned in the management of Metro, Mr Lankry's culpability may be assessed to be the same as that of Metro. This is so notwithstanding that at the time of Metro's offence Mr Dracopoulos was the director of Metro. My reasons for coming to this view are expanded upon below. 31The evidence tendered on sentence does not reveal what, if any, involvement Mr Dracopoulos may have had in the circumstances of the offences. The mere fact that he was a director of Metro at the relevant time does not of itself demonstrate culpability on his part. According to the Agreed Facts, Mr Dracopoulos executed a power of attorney on 3 June 2005 appointing Mr Lankry as his attorney and vesting him with the power to make "all or any" decisions with regard to the business of Metro. Mr Dracopoulos, in his capacity as an engineer working for R Balas Engineering, prepared the engineering drawings for the building. The evidence does not suggest anything defective about the drawings. Mr Dracopoulos ceased to perform the role of structural engineer at the premises in September 2006. At the same time, according to the Agreed Facts, he ceased to have any role on behalf of Metro in relation to the building. On 4 September 2006, Metro subcontracted Mr Moshi as the builder, supervisor and engineer at the site. Mr Moshi commenced working there on 11 September 2006. Based on these matters, the role of Mr Dracopoulos prior to September 2006 at the premises reveals nothing that would enable the Court to infer some culpability on his part in relation to the creation of the risk. After September 2006, Mr Dracopoulos, on the evidence, had no role at all at the site. 32Minfen, and Mr Cheng as its director, on the other hand, contributed to a significant extent to the creation of the risk. Minfen was directly responsible for failing to core-fill the concrete block wall when it reached the requisite height of two metres and for failing to follow the engineering plans in relation to the required distance between the engaged piers. I regard as improbable, for reasons earlier set out, Minfen's explanation concerning the non-provision of the engineering plans. Minfen also failed to develop or provide to its workers, or to supply, a SWMS for the construction of the hollow core block walls. The generic document prepared by Minfen on or about 29 September 2006 did not constitute an adequate SWMS for the purposes of the construction at the premises. Minfen, according to the Agreed Facts, did not ensure that the wall had adequate returns or cross walls. Moreover, Minfen, together with Metro, the site supervisors and Combined Scaffolding, did not ensure that there was full perimeter scaffolding in place, or, that overhead protection was installed on the southern side of the walls to prevent falling objects, or that the temporary bracing was in conformity with the requirements of the relevant Australian Standard. 33Combined Scaffolding, based on the material set out above, also contributed to a significant degree to the creation of the risk by reason of its failures to ensure appropriate scaffolding was in place. 34According to the Agreed Facts, the site supervisors, Mr Moshi and later Mr Constantinos, also failed to ensure safe measures were put in place to prevent the structural collapse of the wall. In addition, according to the Agreed Facts, the site supervisors failed to ensure full perimeter scaffolding was erected, that overhead protection was installed to prevent the ejection of objects, and that adequate temporary bracing was provided for the wall as required by the relevant Australian Standard. Moreover, in their role as site supervisors, Mr Moshi and later Mr Constantinos were required to oversee the day-to-day activities at the premises. Their responsibilities extended to ensuring that the hollow core block wall was core-filled when it reached a height of two metres, and that it had adequate returns and cross walls. Both men at different times had informed Mr Lankry of the need to core-fill the block work with concrete. In addition, Mr Constantinos was aware in the week of 9 October 2006 that the wall had not been braced. He also informed Mr Lankry of this oversight. 35It was submitted on Mr Lankry's behalf that although he was made aware of the need to have the wall filled with concrete and had taken steps for that to occur, there was no evidence that the people informing Mr Lankry of the need to core-fill the wall also raised with him the risk of the wall collapsing in the interim. I have already found that the risk that the wall could collapse was obvious. In my view, someone in Mr Lankry's position of responsibility at the site would have been aware of the risk, having regard to the following matters: i) Mr Lankry knew that the wall needed to be core-filled; ii) Mr Lankry knew that the wall was constructed to a height well in excess of the height required for the core-filling to take place; iii) Mr Lankry knew that the wall was not adequately braced; iv) the wall was built to its full height without returns or cross walls; v) his responsibilities at the site and his regular attendance at site meetings during which the construction of the building was discussed, are matters which give rise to a reasonable inference that he was also aware of the fourth matter; vi) in addition to (v) above, Mr Lankry had prior experience in the construction industry, although that experience was limited to the construction of residential premises. 36It was submitted on behalf of Mr Lankry that any assessment of his culpability should take into account the failure to prosecute or pursue prosecutions of the other entities and individuals involved in the construction of the building. It was further submitted that Mr Lankry's culpability falls at the lowest end of the spectrum in relation to the contribution by all parties to the risk to safety that evolved during the construction of the wall. 37The Court agrees with the substance of the first submission. The assessment of the nature and quality of the offences to which Mr Lankry pleaded guilty (that is, Mr Lankry's culpability) involves here a consideration of the role of those other entities and individuals who by their actions and omissions contributed to the risk to safety which ultimately caused the collapse of the wall. I have undertaken an analysis of the respective roles of those other entities and individuals who I have found contributed to the risk and I intend to take their involvement into account as mitigating the objective seriousness of Mr Lankry's offences. In doing so, I bear in mind the remarks of Wright P in Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [34]: The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them. 38The Court does not agree with the further submission made on Mr Lankry's behalf that his culpability lies, "at the lowest end of the spectrum". Mr Lankry's role in the circumstances of the offences embraced both his responsibilities as representative for both Domain and Metro. Both those corporate entities had responsibilities at the site. Domain was the developer and principal contractor, Metro was the builder, supervisor and contract administrator. Mr Lankry, on behalf of both entities was actively involved in day-to-day operations at the site. He was also aware of the various deficiencies with regard to the method of construction of the wall which had not been attended to at the time of the collapse. Given these matters, the Court regards Mr Lankry's offences as objectively serious, although for reasons which I have attempted to address in some detail, the respective contributions of those other entities to the creation of the risk serves to mitigate the objective seriousness of the offences.

Maximum penalty 39Mr Lankry has no prior convictions under the relevant health and safety legislation. Accordingly, he faces a maximum penalty of $55,000 for each offence.

Deterrence 40The penalties to be imposed should include an element relating to general deterrence based upon the necessity to deter others from failing to take an appropriate approach to ensuring that known hazards in the construction industry are rectified and the resultant risk to safety minimised or eliminated. 41Specific deterrence will also be taken into account. According to the Agreed Facts, the collapsed wall was demolished by a suitably qualified demolition contractor and full perimeter scaffolding was installed at the premises. On 12 December 2006, construction of the wall again commenced. When it reached about 2.8 metres in height there were no sufficient means in place to stabilise the wall and engaged piers had not been installed in accordance with the engineer's drawings. In addition, the return on the southwest corner of the first floor had been inadequately formed. These matters are all agreed facts. It was not until a Prohibition Notice was served on Metro requiring the construction of the walls with the appropriate number of engaged piers, as well as requiring the erection of adequate temporary bracing between the piers for support, that Metro attended to those matters. Also relevant to the application of specific deterrence is the fact that both Domain and Metro have been de-registered. However, Mr Lankry is presently a shareholder and director of My Pelican Australia Pty Ltd which, as the Court understands, intends to undertake services in relation to property maintenance such as electrical, plumbing and small residential renovations. Given these matters, a small component of the penalties to be imposed should take into account specific deterrence.

Subjective Factors 42It was submitted on behalf of Mr Lankry during oral hearing that if the Court were to form the view that any penalties to be imposed should fall at the lowest end of the spectrum, the Court should revisit the question of whether a punishment by way of conviction is the appropriate outcome taking into account all relevant matters under the Crimes (Sentencing Procedure) Act 1999 (CSP Act). In written submissions it was contended that the present circumstances warrant an order made under s 10 of the CSP Act. Since I have not formed the view that Mr Lankry's conduct falls at the lowest end of the spectrum, I do not consider that an order under s 10 of the CSP Act constitutes an appropriate response to the level of objective seriousness of the offences to which Mr Lankry pleaded guilty. The Court is aware of authorities which establish the proposition that an offence need not be trivial to attract an order under s 10. Mr Lankry relied upon Inspector Stephen Cooper v Kwik-Seal Pty Ltd & anor [2006] NSWIRComm 48, as an example of one such authority in this jurisdiction. However, in that decision, Haylen J (at [39]) noted that the availability of s 10 of the CSP Act arises in "rare and limited circumstances" in relation to proceedings brought under the OHS Act 2000 and that circumstances which included a risk of injury from an accident that was not difficult to foresee, where the breach could result in serious consequences, and where the risk of injury was easily preventable, would seldom warrant an exercise of the discretion under s 10 in favour of a defendant. The Court notes here that the same factors alluded to by Haylen J have been found by this Court to underpin its finding of objective seriousness in relation to both offences. 43In Inspector Jason Andrew Wall (WorkCover Authority of New South Wales) v Lubo Medich Holdings Pty Ltd [2011] NSWIRComm 18, similar reliance was placed on the authority of Kwik-Seal in support of an application under s 10. At [45] of my judgment, I distinguished Kwik-Seal by reference to a number of features: Mr Medich sought reliance on a judgment of Haylen J in Inspector Stephen Cooper v Kwik-Seal Pty Ltd and anor [2006] NSWIRComm 48 in which his Honour granted an application made by the individual defendant under s 10 of the CSPA. The circumstances which confronted his Honour in that case were vastly different from the present circumstances and the judgment is readily distinguishable. His Honour had the advantage of hearing the defendant giving evidence in the witness box and formed a favourable impression of that evidence. His Honour also found that the defendant and the corporate defendant had in place prior to the offences a safe system of work at the accident site and that what happened on the day of the offences was contrary to that safe system and appeared to have been the result of a conscious decision made by one of the sub-contractors. His Honour found that the individual defendant had personally issued instructions to the sub-contractor (the person exposed to risk) on the morning of the offences. Those instructions were consistent with a work method in force for some weeks in which the sub-contractor had been trained but had chosen for some undisclosed reason not to follow. His Honour formed the view that what occurred on the day of the offences was uncharacteristic of the operation of the individual defendant's business and something of an aberration: at [58]. 44In contrast, in this matter, the system of work at the premises was deficient in many respects. In addition, Mr Lankry, as I have found, would have been aware of a number of factors which contributed to the risk to safety. On the other hand, the many testimonials tendered on Mr Lankry's behalf attest to his good character. In addition, Mr Lankry is genuinely contrite, a matter that will be expanded upon later in these reasons. Mr Lankry also expressed concern as to his ability to obtain business insurance in the event of a conviction. None of these matters, which are favourable to Mr Lankry, are sufficiently persuasive to attract the Court's discretion to grant the application under s 10 of the CSP Act. 45Mr Lankry's pleas of guilty entitle him to a reduction of penalty in relation to both offences as a reflection of the utilitarian benefit to be derived from the guilty pleas. It was conceded by the prosecution that the pleas were entered at an early stage. According to the submission on behalf of Mr Lankry he entered pleas of guilty at the fifth directions hearing. However, two applications were made on his behalf to withdraw the pleas of guilty and both were unsuccessful. The prosecution relied on the making of the two applications in support of a submission that the utilitarian value of the pleas should be tempered. No authorities were advanced in support of the submissions and on behalf of Mr Lankry it was submitted that the prosecution's contention that the utilitarian value of the pleas ought be tempered by the applications to set aside the pleas of guilty should be rejected. 46It is a well-known proposition that generally, the reason (or reasons) for a delay in entering a plea of guilty is irrelevant because if it is not forthcoming the utilitarian value is reduced: see, for example, Regina v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510. A not unrelated and equally well-known proposition is that a discount for the utilitarian value of a guilty plea will be determined largely by the timing of the plea, so that the earlier the plea the greater the discount: R v Thompson (2000) 49 NSWLR 383. Notwithstanding these matters, the prosecution did not develop its submission that the utilitarian value of the pleas should be "tempered" (a submission that was vigorously opposed) and it did not place before the Court any authorities in support of the submissions. The Court therefore does not take into account in its consideration of this issue, the two (unsuccessful) applications to withdraw the pleas of guilty. I propose therefore to assess the utilitarian value of both pleas at 20 per cent. 47The prosecution also conceded that Mr Lankry has expressed contrition and remorse for his part in the circumstances of the offences. In the Court's view, Mr Lankry has accepted responsibility for his role in the circumstances of the offences and has expressed remorse for the commission of the offences and for the injuries caused to Mr Bowden. In his affidavit, Mr Lankry said: When I first heard about the incident I was shocked and worried, especially as I initially believed that a wall had fallen on the road at a time when there would be peak hour traffic. I attended the site immediately and was very relieved when I was told that there had been no injuries, although I subsequently learned that a worker at the funeral parlour had sustained minor injuries. I was again very relieved that he had not sustained more serious injuries. I felt from the beginning that I had been let down by people on whom I had relied to develop the site, where many of those individuals have not been prosecuted or issued with penalty notices. I now accept that I had obligations in respect of the site, and I sincerely regret that I did not discharge those obligations. 48The absence of prior convictions is illustrative of good industrial citizenship and entitles Mr Lankry to leniency: Graincorp Operations Limited v Inspector Mason [2006] NSWIRComm 304; (2006) 157 IR 103. Mr Lankry also co-operated throughout the course of WorkCover's investigation into the circumstances of the offences. 49Mr Lankry also tendered into evidence several impressive testimonials which attest to his good character and extensive community involvement. 50Mr Lankry also initiated several post-incident measures designed to ameliorate the conditions at the premises. These are set out in his affidavit and appear below: GIO investigated the incident within six weeks and covered all of the costs associated with the property damage and repairs caused by the wall collapse. After the wall collapse I checked with the operators of the funeral parlour regarding: (a) cleaning up their site, which we attended to within a week; (b) the rebuilding of buildings damaged in the wall collapse; and (c) the health of the injured worker. I also offered the use of the basement at the premises for the funeral parlour to park their hearses, and they utilised that space for that purpose for a number of months after the incident. 51Mr Lankry also suffered considerable stress and some financial hardship as a result of the accident and the subsequent investigation. He separated from his wife. He now resides in rental accommodation and has borrowed money from friends and family to re-start his career. According to his affidavit (the contents of which were unchallenged), Mr Lankry currently owes $7.5 million to family and friends. His wife provides some financial assistance. He does not own any property. These latter matters were not relied upon by Mr Lankry in support of a submission that he lacks the financial capacity to pay a fine. Rather, as the Court understands it, the matters were relied upon as factors the Court may take into account in mitigation of penalty. In the absence of any submission to the contrary, the Court proposes to take them into account in addition to the other factors advanced on Mr Lankry's behalf in mitigation of the penalties to be imposed: in this regard, see, for example, Department of Mineral Resources (Chief Insp McKensey) v Berrima Coal Pty Ltd [2001] NSWIRComm 130; (2001) 105 IR 348 at [201] per Walton J, Vice-President.

Costs 52The prosecutor seeks an order pursuant to s 257B of the Criminal Procedure Act 1986 that Mr Lankry pay his costs and disbursements in a sum as agreed or as assessed. In addition, the prosecutor seeks an order that Mr Lankry pay his costs in relation to the two applications brought by Mr Lankry by way of Notices of Motion to withdraw his pleas of guilty. 53In relation to the two applications to withdraw the pleas of guilty, costs were reserved in each matter. Mr Lankry was unsuccessful on both applications. I see no reason why costs should not be awarded in favour of the prosecutor in relation to both applications. Accordingly, I propose to do so. However, in case there be any uncertainty about this, any costs incurred by the prosecutor as a result of its applications to amend the charges following Mr Lankry's unsuccessful applications will not form part of any costs order imposed in favour of the prosecutor. 54A written submission was also made on Mr Lankry's behalf that the substantial costs incurred by him in defending the prosecutions should be taken into account in assessing the penalties to be imposed. While there are instances where it may be appropriate to take costs into account when determining penalty (see, for example, Boland J, President, in Inspector Lancaster v ML Colturi Sawmills Pty Ltd [2011] NSWIRComm 47 at [66]), in the absence of any developed submission in these proceedings, the Court is unable to properly consider whether the present circumstances constitute an appropriate instance.

Totality 55The principle of totality applies in these proceedings. Both offences arise from the exposure to the same risk and from the same course of events, as well as relating to the same incident. The prosecution conceded that there is a significant overlap in the particulars of each offence and that they contain common elements: see Inspector Fraser v Karabelas [2011] NSWIRComm 56; (2011) 207 IR 228 at [27]-[29]. 56In relation to the offence under s 8(2) by virtue of s 26(1) of the OHS Act 2000, I consider that a fine in the sum of $9,000 should be imposed and in relation to the offence under s 10(1) by virtue of s 26(1) of the OHS Act 2000, a fine in the sum of $7,000 should be imposed. 57In order to properly reflect the criminality of Mr Lankry, taking into account the principle of totality, I consider the total fine for the two offences should be $9,000.

Orders 58In IRC 1847 of 2008, the Court orders that Alex Avi Lankry is convicted of the offence and fined $4,500 with a moiety to the prosecutor. 59In IRC 1848 of 2008, the Court orders that Alex Avi Lankry is convicted of the offence and fined $4,500 with a moiety to the prosecutor. 60In IRC 1847 and IRC 1848 of 2008, the defendant is to pay the reasonable costs of the prosecutor incurred in the sentencing proceedings as agreed or assessed. 61In IRC 1847 and IRC 1848 of 2008, the defendant is to pay the reasonable costs of the prosecutor incurred in the two interlocutory proceedings brought by way of Notices of Motion to withdraw his pleas of guilty.

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: 28 May 2013

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Cases Cited (15)