Role played by defendants
22It was recently observed in Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31 that a factor to be considered in determining the seriousness of the defendant's offence is the role played by other parties: at [44]. In determining an appropriate sentence in circumstances where more than one individual or entity can be said to have contributed to the relevant risk, the Court is to view the nature and seriousness of the defendants' offences by reference to the contribution of the defendants to the relevant risk: WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [31]. However, as the prosecutor observed, this principle does not require a sharing or apportionment of culpability and hence of sentence: WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316 at [48].
23As the prosecutor further submitted, the corporate defendant performed the role of a subcontractor with direct responsibility to ensure that proper safety standards were implemented and maintained at the site. Under the contract dated 3 August 2009 between Multiplus and Aleksic Carpentry for the supply and installation of timber framing the corporate defendant was responsible for taking immediate corrective action to eliminate and control hazardous work conditions. The corporate defendant was also responsible for instructing the subcontractors engaged at the site, for monitoring their work and dealing with site safety issues.
24In performing that role, the corporate defendant failed to take appropriate steps to address an obvious and known risk to persons working at the site, namely, the risk of injury to non-employees working on the ground floor level at the premises of falling approximately four metres through an open, unsecured penetration to a concrete basement below. I agree with the prosecutor that the risk to which Mr Markovski, Mr Djukic and Mr Preston were exposed was both self-evident and grave.
25I also accept the prosecutor's submission that the personal defendant performed the role of a site/operations manager with direct responsibility to ensure that the instructions he gave to Mr Markovski, Mr Djukic and Mr Preston did not expose them to the risk of physical harm. At the time of the incident, the personal defendant was the most senior person with authority at the site, and he issued the work directive, which directly led to Mr Markovski falling through the penetration.
26I accept the defendants' submission that it was the personal defendant and no other contractor or person with responsibility on the site who noticed the unsecured penetration cover and that he took steps to have it covered over. However, that was a completely inadequate solution, particularly in circumstances where Mr Markovski and his fellow workers were directed by the personal defendant to lift the fibro sheet used to cover the penetration onto the second floor of the building under construction. That left the penetration uncovered in circumstances where three workers trying to lift an awkward and heavy sheet did so in close proximity to the penetration opening.
27Apart from the fact the personal defendant did have some regard to the obvious risk posed by the penetration, the defendants' attention to safety on the site was woefully inadequate. Mr Markovski had little familiarity with construction sites; he was there under a vocational rehabilitation program. Mr Markovski was required to perform work on the site as evidenced by him providing assistance to other workers to lift the fibro sheeting, yet he was not wearing a helmet, gloves or proper boots on the day of the incident, he did not complete a site induction, no emergency procedures were established for the site, no hazard reporting procedure was established on the site, no risk assessment was conducted, safe work method statements were not observed and there appears to be no evidence of any instruction given to workers regarding safety in relation to open penetrations. The site was an accident waiting to happen.
28I have had regard to the fact that the corporate defendant was the smallest of corporations with the personal defendant the sole director and that the defendants were working on a site where the overall control lay in the hands of others. I am also alert to the fact that small contractors, like the corporate defendant, often feel limited in what they can do or say in relation to such matters as safety on construction sites controlled by others.
29However, the Act places a very strict obligation on employers and others to ensure individuals are protected from risks to their health and safety and that obligation cannot be avoided by pleading ignorance or by claiming lack of responsibility for operations on a construction site in circumstances where the Act imposes a specific responsibility for safety.
30Under s 10(1) a person who has control of premises used by people as a place of work must, so far as is reasonably practicable, ensure that the premises are safe and without risks to health. At the relevant time the corporate defendant was exercising control over the premises, or part of them, in that persons in respect of whom the corporate defendant had a responsibility for safety were directed by the personal defendant to lift flooring material in the form of compressed fibro sheeting onto the second floor of the structure. In the immediate vicinity of this work being undertaken was an open penetration that undoubtedly presented a risk to safety. The corporate defendant failed to take reasonably practical steps, such as ensuring the penetration was securely covered, to ensure the workers' safety.
31The personal defendant submitted that he was unaware that form ply, which had been used to form the concrete floor and which had at one stage covered the penetration opening from underneath, had been removed. Two things may be said about that. First, if the personal defendant was to direct workers to lift awkward and heavy sheets in the vicinity of the penetration he could have and should have undertaken a simple visual check of whether the form ply was still in place. After all, the risk was a worker falling nearly four metres to the basement below. Secondly, even if the personal defendant believed the form ply remained in place, removing the sheeting from over the penetration - an act directed to be performed by the personal defendant - still left an obvious risk to safety, namely, a trip hazard constituted by the hob or lip of the penetration and a hole of some 350-400 mm deep. The personal defendant knew even that was a hazard because he covered it over albeit not in a secure fashion.