Inspector Sherras v Interland Constructions Pty Limited & Ors [2008] NSWIRComm 65 | Case summary

Inspector Sherras v Interland Constructions Pty Limited & Ors [2008] NSWIRComm 65 | Case summary | Zoe

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1 Interland Construction Pty Limited ("Interland") is a company in the business of providing formwork, steel fixing and concrete services to the construction industry. Interland provided formwork services to Kell & Rigby, the principal contractor responsible for the construction of an extension known as the "Link" at St Luke's Grammar School, 8 Tango Avenue, Dee Why ("St Luke's"). 2 On or about 7 February 2005, PTV Management Services Pty Ltd ("PTV") was subcontracted by Interland to provide formwork services at St Luke's. At approximately 2.30 pm on 21 April 2005, Mr Christos Tsigaropoulos, an employee of PTV, fell from the unguarded edge on a formwork deck approximately 2.7 metres high onto the concrete floor below. No handrails or fall prevention measures were in place at the time of the incident. 3 Mr Tsigaropoulos suffered serious injuries including a fractured skull and three fractured ribs as a consequence of the incident. He was treated as an inpatient for two weeks. 4 Interland and Franco Vecchiato, the sole director of Interland, were charged under s 8(2) of the Occupational Health & Safety Act 2000 ("the Act"). Mr Vecchiato's charge arose pursuant to s 26(1) of the Act. PTV and Mr Peter Karabelas, the sole director of PTV, were charged under s 8(1) of the Act. Mr Karabelas' charge arose pursuant to s 26(1). PTV went into liquidation and the prosecution against it was subsequently withdrawn. These sections relevantly provide: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. ... 26 Offences by corporations-liability of directors and managers (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

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8 Mr A C Casselden of counsel, who appeared for the prosecutor, tendered the following evidence in the sentencing proceedings: 1. A statement of agreed facts in respect of the prosecutions against Interland and Mr Vecchiato. 2. A statement of agreed fact in respect of the prosecution against Mr Karabelas. 3. A factual inspection report by Inspector Phillip May dated 11 July 2005. 4. 12 photos taken by Inspector Phillip May on 22 April 2005 which show the construction site at St Luke's; the level two formwork deck; the uncovered penetration on the level two formwork deck; the view of the formwork deck from level one and the level one floor surface. 5. A WorkCover publication of "The Code of Practice - Formwork" dated 22 June 1998 (sections 3 and 4). 9 The agreed statement of facts for Interland and Mr Vecchiato, excluding formal parts, stated: 2. At all material times Franco Vecchiato, ("the second defendant"), was a director of the corporation Interland Constructions Pty Limited (ACN 051 623 280) ("the first defendant"). 3. At all material times: · Kell & Rigby Pty Limited ("Kell & Rigby") was a corporation within the construction industry; · Kell & Rigby was the principal contractor responsible for the construction of an extension known as the "Link" at St Luke's Grammar School, 8 Tango Avenue, Dee Why ("the premises"). 4. At all material times: · The first defendant was a corporation in the business of providing formwork, steel fixing and concrete services ("formwork services and materials") to the construction industry. · The first defendant was engaged in the provision of formwork services and materials to Kell & Rigby. · The first defendant was an employer. · The second defendant was the sole director of the first defendant. · The first defendant used the premises as its place of work. · On or about 7 February 2005 the first defendant engaged a subcontractor, PTV Management Services Pty Ltd ("PTV") to provide formwork services and material to the premises. 5. At all material times: · PTV was in the business of providing formwork services ("formwork services and materials") to the construction industry. · PTV was an employer and in particular employed Christos Tsigaropoulos, Chris Armanditis, Vinzelos (Vic) Karabelas and Loui Oubani. · Vic Karabelas was employed as PTV's site foreman at the premises. · The premises were PTV's place of work. · By purchase order dated 7 February 2005 PTV was engaged as a subcontractor by the first defendant to provide formwork services and materials at the premises. · Mr Peter Karabelas was the sole director of PTV. 6. Christos Tsigaropoulos ("the injured worker") had commenced employment with PTV as a formworker on the premises, approximately one week before the incident. The injured worker was a qualified formworker and had thirty years experience in the industry. The Incident 7. On the day of the incident (21 April 2005), PTV's site foreman, Vic Karabelas gave directions to the injured worker to modify the formwork deck on level 2 of the premises by extending the formwork deck. 8. The injured worker, with the assistance of Chris Armanditis, and under the instructions of PTV's site foreman, Vic Karabelas, removed the handrail that was in place on level 2 and proceeded to carry out the modification works to the formwork deck on level 2. 9. The formwork deck the injured worker was working on measured approximately 25 metres in length and was between 5 and 6 metres wide. The formwork deck the injured worker was working on was approximately 2.7 metres high and was located above the level one surface. 10. At approximately 2.30pm the injured worker fell from an unguarded edge on the formwork deck approximately 2.7 metres to the concrete floor below. There were no witnesses to the incident. Loui Oubani, a labourer for PTV found the injured worker and raised the alarm. 11. At the time of the injured worker's fall there was no handrail or any other fall prevention measures in place. After the incident catch platforms were erected by PTV under the supervision of Lachlan Munro, Kell & Rigby's site manager. 12. The injured worker suffered serious injures including three fractured ribs, and a fractured skull. The injured worker was transported to Royal North Shore Hospital and was treated as an inpatient for two weeks. Systems of Work Prior to and up to the Incident: 13. Prior to the first defendant or PTV commencing work on the premises, Kell & Rigby required a safe work method statement ("SWMS") to be submitted detailing the proposed manner in which work conducted by the first defendant and PTV on the premises was to be carried out. A SWMS was prepared by PTV and submitted to the first defendant, through the second defendant. The second defendant perused that document and submitted it to Kell & Rigby. 14. Some time after submitting the required SWMS, PTV and the first defendant were inducted on to the premises by Kell & Rigby personnel and commenced work pursuant to their respective contracts. 15. The induction process in accordance with Kell & Rigby's usual practice as detailed by Lachlan Munro, site manager of the premises includes; "A 60…(filling) out the induction form, (showing)…their green card and any industry qualification. We then read through our site rules and procedures which we tick off as we go. They then read and sign their work method statement in front of us to ensure they understand." 16. A contractual term, which formed part of the site rules, between the first defendant and Kell & Rigby required PTV and the first defendant to notify Kell & Rigby of their intention to remove any safety hand rails prior to doing so ("site rule"). 17. The site rule was communicated to the first defendant and PTV, and in particular the injured worker, during the induction process by Kell & Rigby personnel. The first and second defendant relied upon the site induction conducted by Kell & Rigby for the information to be conveyed to PTV and the first defendant. 18. The WorkCover publication "Code of Practice - Formwork" published on 22 June 1998 provides information on safe work systems and control measures in relation to formwork. Section 4 provides that control measures to prevent persons working at heights from falling should be provided and maintained as part of a safe system of work. These control measures may include fencing, handrails, safety screens, scaffolding, guardrails, safety nets, elevating work platforms, fall arrest systems or a combination of the above. Systems of fall protection should also be provided for persons installing and removing safeguards. Where the erection of formwork deck involves work at height of more than one standard frame (of the standard 1.8 m height) with end fittings, a system to prevent or arrest falls must be provided to safeguard persons at risk of falling. 19. At the time of the incident there was no handrail or any other fall prevention measures in place. Interland /Franco Vecchiato ("first defendant/second defendant") 20. The second defendant was site supervisor for the first defendant at the premises at the time of the incident. Neither the first or second defendant conducted a site specific or general induction at the site. 21. The second defendant attended the premises 2-3 times per week for half a day at a time. The second defendant was not on the premises on the day of the incident, but had been there the previous afternoon. His site walk of the afternoon before the incident established all handrails were in place at that time. 22. The second defendant, on behalf of the first defendant, held a few toolbox talks with the foreman on site, namely Vic Karabelas. When the second defendant was asked: Q 77 What were these toolbox talks about? The second defendant replied: A77 Whenever any safety issues came up of cleanliness or site procedures I was advised by Kell & Rigby to inform them. 23. The first defendant did not have a system for assessing and reviewing the adequacy of the SWMS provided by PTV. 24. The first defendant did not have an adequate system or procedure to ensure that subcontractors were working in accordance with their SWMS. 25. The first defendant did not have an OH & S training system in place for these premises. PTV/Peter Karabelas 26. The SWMS provided by PTV was of a generic nature for typical formwork activities. PTV employees were not consulted regarding the nature of the work that was to be carried out at the premises prior to preparing the SWMS that was submitted to Kell & Rigby. 27. PTV did not have a system in place for consulting with staff when preparing a SWMS. 28. Supervisors for PTV did not receive formal OH& S training and did not understand the nature of a SWMS. 29. PTV did not enforce compliance with the SWMS relevant to the premises. 30. PTV did not arrange for a revised SWMS or risk assessment to be carried out at any time, prior to or after instructions to remove the handrail was given. 31. Mr Peter Karabelas seldom attended the site and kept in contact with the site via telephone calls to his foreman Vic Karabelas. Mr Peter Karabelas had attended the site once prior to the incident. Details of the Systems of Work after the Incident Interland/Vecchiato ("first defendant/second defendant") 32. The first defendant via the second defendant appointed a safety officer. 33. The first defendant participated in the toolbox meeting post the incident implementing a revised SWMS prepared by PTV and the Master Builders Association. PTV/Peter Karabelas 34. PTV appointed a permanent safety officer. 35. A revised SWMS was prepared, with the assistance of the Master Builders Association. The revised SWMS has in place more detailed control measures to be implemented when working at heights. 36. Mr Peter Karabelas expressed a commitment to ensure that PTV's employees would be trained more regularly to identify hazards. 37. Weekly site meetings were conducted with employees. Factual Report 38. On 22 April 2005 Inspector Phillip May attended the premises. He prepared a Factual Investigation Report dated 11 July 2005 and took a series of photographs of the site. 39. On 22 April 2005 Inspector Phillip May issued a Prohibition Notice No 144089 upon PTV for working at heights from formwork deck without edge protection. On 29 April 2005 Inspector Phillip May revisited the site to follow up on the Prohibition Notice and found that the notice had been complied with. Proceedings 40. On 17 April 2007 documents were filed in the Industrial Court of NSW. On 23 April 2007 orders were made by the Industrial Court of NSW commencing proceedings against the first defendant for a breach pursuant to section 8(2) of the Occupational Health & Safety Act 2000. 41. On 17 April 2007 documents were filed in the Industrial Court of NSW. On 23 April 2007 orders were made by the Industrial Court of NSW commencing proceedings against the second defendant for a breach pursuant to section 8(2) of the Occupational Health & Safety Act 2000 by virtue of section 26(1) of the Occupational Health & Safety Act 2000. 42. The first defendant does not have any prior convictions. 10 The agreed statement of facts for Mr Karabelas was in similar terms to the agreed statement of facts for both Interland and Mr Vecchiato. 11 Mr R Reitano of counsel appeared for Mr Karabelas and relied upon an affidavit of Mr Karabelas, the director of PTV, sworn on 14 March 2008. Mr Karabelas was not required for cross-examination. 12 Mr Karabelas stated that in late 1993 his father Vinizelos Karabelas, a formwork carpenter of many years, encouraged him to take up an apprenticeship with his company. Mr Karabelas subsequently enrolled at TAFE and commenced his apprenticeship. 13 In 1997, Mr Karabelas started working under the name of Mani Construction. By 2000 Mani had a turnover of $500,000 and Mr Karabelas' role was to be the estimator and bid for work. Mr Karabelas would only attend on-site when concrete pours were occurring. The site supervisors were his father and his brother Tom. 14 In 2001 PTV was formed by Mr Karabelas. He stated that in 2003 it became his operating company. Although PTV was a considerable business, it returned losses in 2004 and 2005. The company employed five carpenters, a truck driver, some labourers and office staff. Mr Karabelas would engage contractors when needed. 15 Mr Karabelas stated that in 2006 PTV was liquidated on his accountant's advice, as he did not want to be prosecuted for trading while insolvent. At the time, PTV had an accumulating debt of $430,000. He recalled that at the time the company had a problem collecting funds due from debtors. Mr Karabelas registered a new company, Formcom Holdings. He is the sole director and shareholder. 16 Formcom has about 15 employees/subcontractors working on three or four different sites at any one time. It is in the same line of business as Mani and PTV in providing formwork and steelwork to the construction industry. Mr Karabelas' father works as a site supervisor and the safety officer is his younger brother, Mr Louka Karabelas. 17 The safety officer position was created after the incident which gave rise to this prosecution. Mr Karabelas stated that to enable his brother to work as the safety officer he sent him to a course in June 2005 conducted by Comet Training Pty Limited, an accredited WorkCover training body. This course took over five days to complete. 18 Mr Karabelas stated that his brother is responsible for undertaking site safety inductions, toolbox meetings and weekly meetings. Once every month he is required to tag all tools and machinery to ensure that they have been serviced, maintained and function safely. He also conducts a safety walk with the builders once every week. Further, he is required to prepare safe work method statements and to email Mr Karabelas the minutes of all his toolbox talks and keep him informed. Mr Karabelas regularly observes him by visiting the worksites of Formcom. Mr Louka Karabelas' role as a safety officer is audited once every four months by a representative of the Master Builders Association. These safety practices and procedures which were executed by Mr Louka Karabelas were introduced after the incident. 19 Mr Karabelas outlined the procedures undertaken by PTV prior to the incident. He stated that he was in regular discussions with the supervisors on the jobs and would have toolbox talks on site to ascertain what methods were adopted to ensure the safety of employees at different stages of the work. He admitted that the toolbox talks did not provide comprehensive cover and were insufficient in number. Mr Karabelas stated that he was aware that his past practices were incorrect and that he was guided by the builder and relied on their safety systems. He also relied on workers in possession of a "green card" system which demonstrated that they had received safety training on building and construction sites. Mr Karabelas stated that the procedures to ensure safety had to be upgraded after the incident to minimise risks associated with formwork. Formcom also purchased a considerable amount of safety equipment such as hard hats, work boots, safety vests and harnesses. 20 Mr Karabelas stated that prior to the incident, in his capacity as a director of PTV, he ensured that every job had its own safe work method statement on site. PTV also had a safety management plan. A copy of the safe work method statement submitted to Kell & Rigby and a copy of the safety management plan were annexed to Mr Karabelas' affidavit. 21 The current system used for safe work method statements and toolbox talks by Formcom is now more formal than in 2005 with less reliance being placed on the builder. A sample toolbox talk record was annexed to the affidavit. 22 Mr Tsigaropoulos' experience and qualifications were set out in Mr Karabelas' affidavit. He has had thirty years experience in formwork and holds a green card and formwork competency certificate. Mr Tsigaropoulos was inducted into the site by Kell & Rigby. He has indicated on Kell & Rigby's site induction form that he understands the need to make sure that handrails and signs are placed around penetrations and that it is necessary to ensure that all scaffolding where work is being done has handrails and kickboards. A copy of the workers' training for the St Luke's site and a copy of Mr Tsigaropoulos' site induction form were annexed to Mr Karabelas' affidavit. 23 Mr Karabelas understood that Mr Tsigaropoulos and Mr Amanditis were instructed by his father, the supervisor of the site, to dismantle a handrail in the area where the incident occurred. This was done to permit an extension of the formwork in that area. He stated that the workers were then told by Mr Karabelas' father to complete work in another area. Mr Karabelas spoke to his father and neither one knew why Mr Tsigaropoulos was in the area when the incident occurred. Mr Tsigaropoulos had been told not to climb down the frames. 24 Mr Karabelas stated that he does not personally own property. However, Mani owns two commercial properties which are valued at $450,000 and $220,000. There are loans of $300,000 and $100,000 owed respectively on these properties. He is the sole director and shareholder of Mani. His net weekly earnings are $980 per week and his rent is $1,600 per month. 25 Mr Karabelas expressed his contrition for the incident. He said that he tried his best to make sure workers at his site were safe. He learnt a great deal from the incident and in particular that it is necessary for Formcom to take responsibility for all aspects of work safety and not to rely on others. Mr Karabelas stated that the improvements to safety he has made are designed to ensure that this type of incident does not recur. 26 Mr A Rogers of counsel, who appeared for Interland and Mr Vecchiato, called Mr Vecchiato and Mr Ray Virta, the safety officer for Interland, to give evidence. He tendered the following evidence in the proceedings: 1. A set of documents produced by Interland which included PTV's Safe Work Method Statement dated 27 April 2005. 2. Interland's Records of Task Specific Induction dated 5 June 2007 and 7 June 2007. 3. A copy of Interland's Safe Work Method Statement dated 30 May 2005 . 4. Interland's site safety folder which contains reviews of work method statements, machine log books, check lists, electrical tag register, task specific induction, toolbox meetings and safe work method statements of Interland and its contractors. 5. Site Safety Committee Meeting Minutes of Kell & Rigby for the St Luke's site covering the period February to May 2005. 27 Mr Vecchiato gave evidence that he was aware of the incident, the subject of these proceedings and that he also knew that the incident occurred after a handrail was removed. He stated that he was not at the site on the date the incident occurred, but was present at the site the day before. Mr Vecchiato stated that the handrail was in place on 20 April 2005. He said that if it had not been in place during his site visit, he would have ensured that the deficiency be rectified by PTV. 28 Mr Vecchiato was then taken to PTV's safe work method statement. The statement provided: ... · At the leading edge, erect a catch platform and hand rails where working height is 1.8m or more. · Use safety harness where catch platform is not able to be used. ... 29 In respect of the above statement, Mr Vecchiato gave evidence that a handrail was probably sufficient to prevent the incident considering the particular circumstances in which it arose. He stated that he could not recall seeing a catch platform on 20 April 2005 when he inspected the site. He said that, however, if the safe work method statement provided for a catch platform, he would have ensured that whomever undertook the work would adhere to the statement. Mr Rogers conceded that PTV's statement was provided after the incident and was dated May 2005.

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30 Mr Vecchiato admitted that prior to the incident he had engaged PTV to undertake subcontracting work and did not have any concerns in respect of its attitude or approach to safety. 31 Mr Ray Virta, safety officer of Interland, has been an employee of Interland since 2001 and has been employed in his current position since 2003. He gave evidence that Interland took steps since the incident to ensure that future incidents are prevented. Mr Virta stated that the company now ensures that, having regard to the incident in April 2005, no-one interferes with safety procedures and requirements. The induction of employees is a part of the process. Through the use of the record of task specific induction, a written direction is given to all persons who work on Interland's sites not to "change or affect safety controls already in place unless authorised by the supervisor". All such persons are obliged to read and acknowledge that they have read the record. In cross-examination, Mr Virta stated that the changes to procedure were implemented in 2006. 32 Mr Virta stated that Interland produces a safe work method statement by conducting a risk assessment of the site and hazards. This document is finetuned through consultation with employees and contractors as to their activities to produce the statement. During cross-examination, Mr Virta stated that the safe work method statement produced in evidence was in use around the time of the incident, with the exception of some changes to responsibility issues. The statement was reviewed and changed as required. After induction employees signed the statement. He admitted that Interland had made changes to its induction in January 2006. 33 Mr Virta gave evidence that Interland has changed its health and safety procedures in relation to downtime due to inclement weather. Before the incident, men would be sent home in such conditions. Now safe work method statements and codes of practice are brought out, safety issues are reviewed on site and safety training is conducted. Safety reviews and training are also conducted through weekly toolbox meetings. Sometimes daily task specific inductions are conducted on sites. Codes and methods relating to hazards are constantly reviewed. Mr Virta stated that Interland operates on a site safety management folder and that it has been upgraded since the incident. Relevant Principles 34 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.

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[9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: [I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion." [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: [I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: ... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]). [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: [B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]-[43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: [I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Consideration 35 The primary consideration, as set out in the above principles, is a determination of the objective seriousness of the offences. This involves examining the nature and quality of the offences as set out in the agreed statement of facts and the evidence. On the date of the incident Mr Tsigaropoulos was instructed by Vic Karabelas, PTV's site foreman, to modify the formwork deck on level two of the premises by extending the formwork deck. Mr Tsigaropoulos, with the assistance of Mr Armanditis, under Vic Karabelas' instructions, removed the handrail on level two and proceeded to carry out the modification works. The formwork deck was 25 metres in length, between five and six metres wide and 2.7 metres high. It was located above the level one surface. At the time of Mr Tsigaropoulos' fall there was no handrail or any other fall prevention measures in place. 36 The WorkCover publication of "Code of Practice - Formwork" which was published on 22 June 1998 provides at section 4.1 and 4.2 as follows: 4.1 Prevention of falls The Construction Safety Regulations require that: · safeguards or accident prevention measures be taken where necessary or advisable, and · where persons are exposed to a risk of falling 1.8 m or more, fencing or other safeguards be provided. A system to control risks must be provided for persons exposed to a risk of falling. Accordingly a risk assessment should be conducted for all work, irrespective of height, and appropriate control measures implemented. These control measures may include fencing, handrails, safety screens, scaffolding, guardrails (including mid rail and toeboards or equivalent), safety nets, elevating work platforms, fall arrest systems or a combination of these. Control measures that provide the highest level of protection, such as those that prevent falls, should be used in preference to those providing a lower level of protection such as fall arrest systems.

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a. At one frame high Where the working deck height does not exceed one level of standard frames (of the standard 1.8 m height) with end fittings and control measures to prevent or arrest falls are not provided, an alternative safe work practice should be adopted based on a documented risk assessment. An example of an alternative safe work practice is the use of trained and experienced workers who are provided with specific work instructions (see 3.5 and 6). The risk assessment should also demonstrate that the hierarchy of controls has been considered and that the provision of a higher level of control measure is not practicable. b. Over one frame high Where the erection of formwork deck involves work at a height of more than one standard frame (of the standard 1.8 m height) with end fittings, a system to prevent or arrest falls must be provided to safeguard persons at risk of falling. The following fall protection measures, fall arrest measures or other means that provide an equivalent standard of safety should be implemented: · the use of temporary working platforms, together with the frame metalwork and bracing for fall protection, AS/NZS 1576 Scaffolding requires that temporary working platforms must be at least 450 mm wide (2 planks). Cleats can be used to prevent planks from slipping off the frames. · A temporary working platform as well as a system to prevent or arrest falls should be provided when erecting above the first frame or a temporary catch platform should be provided below the work area. Catch platforms should only be adopted as a risk control measure based on a documented risk assessment (see 4.2c for use of catch platforms). · where temporary catch platforms are provided as a fall arrest measure they should be constructed no further than one frame (of the standard 1.8 m height) with end fittings, below the work or fall risk area. · intermediate working decks should be provided at a height equivalent to three standard frames (of the standard 1.8 m height) with end fittings and also at each three standard frames (or equivalent) with end fittings thereafter (see diagram 1). · all intermediate working decks should be erected from temporary working platforms or temporary catch platforms. · control measures to prevent or arrest falls should be provided at the final deck level before work on that deck commences. Fall protection measures, such as temporary catch platforms erected underneath, or fall arrest measures should be provided for persons carrying out work at the leading edge of the deck (see diagram 2). · when erecting the initial deck area (used for loading materials and for the initial laying of sheeting) a temporary catch platform should be erected beneath the work area as a fall arrest measure. The initial section of the final deck should be of sufficient size (completed with plywood sheeting) to create a safe working area for any further work. Intermediate working decks may be constructed in a manner similar to a final formwork deck (that is, using bearers, joists and sheeting) or may be a further extension of a catch platform.

[29]

Edge protection should be in place when erecting pre-assembled formwork such as table form on floor slabs. a. Handrails Handrails at the perimeter of the deck or the deck openings must be a t least 900 mm in height above the final working surface and have a toprail and a toeboard. 37 It was the defendants' failure to provide a safe system for working at heights in line with what is provided in the Code that gave rise to the risk to the health and safety of the workers. 38 Mr Rogers submitted that the seriousness of the offence should be in the bottom third of the range, having regard to the circumstances. He stated that his clients had failed to properly supervise PTV, but submitted that the objective seriousness of the offence must be determined in light of PTV's failures. Walton J Vice-President dealt with such a submission in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284. His Honour said at 299 - 300: In the present circumstances, the defendant's submission is untenable. The duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant "undertaking" and "place of work". However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd (2001) 105 IR 348; WorkCover Authority (NSW) (Inspector Ankucic) v McDonalds Australia Ltd (2000) 95 IR 383 at 437; WorkCover Authority (NSW) (Inspector Victor Page) v Walco Hoist Rentals Pty Ltd (No 2) (2001) 99 IR 163 at par 31; Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority (NSW) (1996) 70 IR 99 .

[32]

42 Interland had provided handrails on the formwork platform where the incident occurred, but it had failed to prevent PTV from removing the handrail and failed to provide alternative safeguards in accordance with sections 4.1 and 4.2 of the Code. 43 The risks associated with working at heights were capable of being removed if Interland had ensured that PTV strictly adhered to its system of work and had provided safeguards as outlined in the Code. After the incident, Interland and Mr Vecchiato took a simple remedial step to ensure that all workers on its work sites were not exposed to risks. Workers are now directed not to change or interfere with safety controls unless authorised by a supervisor through the use of a written directive in the record of task specific induction. The simple remedial step available demonstrated the defects in Interland's systems. 44 The Full Bench observed in Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 79: In the case of an offence under s15(1) of the OH&S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible:… 45 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. It will be a serious offence where there is an obvious risk or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and foreseeable. In my view, it is readily foreseeable that a formwork platform 2.7 metres high without a handrail and without alternative safeguards would result in a risk to safety. 46 PTV had a defective system of work which failed to provide safeguards to present falls from the formwork platform. It had removed the handrail and failed to implement any alternative safety system. Mr Karabelas admitted that PTV had relied on builders and their systems, but on the date of the incident, it acted contrary to Interland's safety system. In addition, on the day of the incident, after the handrail had been removed, PTV gave only verbal instructions to its employees not to go near the formwork platform where the safety rail had been removed.

[36]

"The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257: 'Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.' " (See also WorkCover Authority (NSW) (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 722). 51 And later at [48]: The employer must also guard against acts of inadvertence to the fullest extent practicable: Inspector Ankucic v Naomi Cotton Co-operative Ltd (unreported, 97/2251, 14 July 1998, Hill J). We note in this respect the observations of the Full Bench in Australian Grader Hire (at par 16) as follows: "Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: 'In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer).

[37]

I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p 44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8).'" 52 The particular aggravating factor of the injuries to Mr Tsigaropoulos must be considered in accordance with the sentencing principles: section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. Greater culpability will generally attach to the neglect of a risk to safety which is likely to result in serious injury: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 29. In this instance, Mr Tsigoropoulos was fortunate not to have lost his life from such a fall. 53 This Court is required to consider, in fixing the level of penalty, deterring future offenders from committing the same crime and deterring the defendants from re-offending. In Capral Aluminium Ltd v WorkCover Authority of New South Wales at [74], the Full Bench recognised, in the industrial context, that it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. This matter, once again, highlights the dangers of working at heights and the importance of implementing appropriate safety measures for the protection of workers in accordance with the Code. This issue has been recently discussed in a number of Full Bench decisions of this Court: Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156; Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd (2006) 157 IR 313 at [43]; WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363. I am therefore of the view that there should be a significant element for general deterrence in the penalty. 54 In relation to the issue of specific deterrence, the attitude of the defendants to questions of workplace safety and any steps taken to improve safety following an incident are relevant, as is the propensity for the defendants to re-offend: Capral at 60. I accept in respect of each defendant that this is not a case which calls for the imposition of some additional specific punishment aimed at deterring the defendants from further offending under the Act and/or for the purposes of compelling the defendants' attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety. The defendants have unblemished records in a dangerous industry and have taken appropriate measures to avoid a recurrence of the offences. 55 After the incident, Interland and Mr Vecchiato undertook measures to improve safety. These measures included the revision of its safe work method statement and ensuring that all persons are not permitted to change or affect the safety measures in place through the record of task specific induction. However, the defendants continue to operate in the construction industry and in accordance with the principles outlined in WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd (2006) 156 IR 341 at [25] - [26] I propose to include an element in the penalty for specific deterrence. 56 In respect of Mr Karabelas, I am informed that PTV is in liquidation and no longer operates in the industry. However, Formcom Holdings, of which Mr Karabelas is the sole director and shareholder, operates in the same business as PTV. Formcom has undertaken measures to improve its safety including the appointment of a safety officer, the purchasing of safety equipment and the revision of its safe work method statements. With Mr Karabelas' continued involvement in the construction industry, I find that an element of specific deterrence should be included in the penalty to be imposed on him in accordance with the principles discussed in Big River Timbers. 57 Relevant subjective considerations include pleas of guilty. Interland and Mr Vecchiato entered early guilty pleas and I propose to allow a discount of 25 per cent for the pleas of guilty in accordance with the principles outlined in R v Thomson; R v Houlton (2000) 49 NSWLR 383. 58 I also take into account that Interland and Mr Vecchiato co-operated with WorkCover in its investigations; their prior good safety record; their good industrial citizenship; the actions taken by the defendants prior to the incident and the measures taken since the incident. 59 Mr Karabelas entered a plea of guilty after the matter was fixed for a three day hearing commencing on 10 December 2007. On 8 October 2007, the defendant first indicated an intention to plead guilty and on 2 November 2007, the defendant formally entered a plea of guilty. 60 Mr Reitano submitted that a late plea is a plea that comes on the eve of a defended trial or alternatively during the course of a trial. It followed, counsel submitted, that his client had not entered a late plea. Mr Reitano emphasised that prosecutions brought before this Court are subject to costs orders, unlike prosecutions brought in other jurisdictions. This is a matter, counsel argued, which had not been considered in Thomson. It therefore resulted in a prosecutor in this jurisdiction being compensated by an order for costs in terms of any inconvenience caused by a late plea. Counsel submitted that Mr Karabelas was entitled to a discount for his early plea. 61 In Thomson, Spigelman CJ (with whom Woods CJ at CL, Foster A-JA and Grove and James JJ agreed) discussed at [160] the guidelines applicable to offences against the laws of New South Wales for guilty pleas as follows: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

Inspector Sherras v Interland Constructions Pty Limited & Ors

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