Inspector Spence v Aleksic Carpentry Pty Ltd & Anor

Statement of facts 13The prosecutor filed in the proceedings a statement of facts. The statement identified the various corporate entities and personnel associated with the site and their respective roles, all of which has been summarised above. The statement also described the site, the construction of the townhouses, the penetrations (which measured approximately 1100 mm square), the incident itself, steps taken following the incident and systems of work prior to the incident. Annexed to the statement was the following supporting documentation: a) Colour photographs taken by Inspector Darren Hayden on 28 August 2009; b) Colour photographs taken by Inspector Jim Alison on 11 September 2009; c) Factual Inspection Report of Inspector Darren Hayden dated 10 September 2009; d) Contract between Multiplus Group and Aleksic Carpentry dated 3 August 2009 including "Subcontractor Pack", together with cover letter dated 27 July 2009; e) Aleksic Carpentry certificate of currency and Safe Work Method Statement; f) Aleksic Carpentry invoices issued to Multiplus Group Pty Ltd for progress payments; g) Site induction record signed by Mr Aleksic and dated 18 August 2009; h) Prior convictions certificate for Aleksic Carpentry Pty Ltd; i) Prior convictions certificate for Milivoje Aleksic. 14The statement of facts described the penetration and the absence of a secure cover over the penetration: In the weeks prior to the incident, Auburn Formworks completed the falsework of the concrete slab, including the timber frame for both penetrations. These timber frames were positioned on the formply surrounding the penetrations and supporting the car park basement area below. The frame sat directly on the formply and no hole was cut in the formply. This resulted in the depth of the penetrations being only the thickness of the concrete slab, plus the height of the hob or collar surrounding the penetration, that is, from the top of the concrete to the formply supporting it from underneath, approximately 300 - 400 mm. The concrete was poured approximately three weeks prior to the incident. Mr Aleksic recalled that on the day of the incident the formply was still beneath the concrete, but the hazard of a drop into the 350-400 mm hole was still present, so a compressed fibro floor sheet was placed over the hole. Mr Djukic, one of the subcontractors engaged at the site, recalls that there had been no cover on the penetration since he had been on site about 1-2 weeks prior to the incident. Mr Djukic says that he assisted Mr Aleksic by placing a sheet of compressed fibro over the penetration a few days before the incident. On 28 August 2009, there was no dedicated secure cover over the penetration. Floor sheeting, either timber and compressed fibro or a combination of both, had been placed over the penetration. 15It is also noted there was no fence or barrier preventing access to the penetration. This was despite a Safe Work Method Statement ("SWMS") used by the corporate defendant identifying "Erect temporary handrail at edge of penetration" as a control measure to be implemented. 16The statement indicated that Austar used a Construction Project Safety Plan, as the Occupational Health and Safety Management Plan for the site. The plan identified Mr Cai as the Project Manager and Mr Shang as Site Manager. The last revision date was 4 September 2009. The previous revision date was 10 May 2009. The plan referred to the adequate provision of Personal Protective Equipment at the site, however Mr Markovski was not wearing a helmet, gloves or proper boots on the day of the incident. 17In relation to "Site Induction and Recording" the statement revealed: The site induction consisted of completion of a form. Not all persons on site completed these forms. Mr Markovski did not complete a site induction. The site induction forms were in English. Mr Hamdan [a shareholder of Auburn Formworks who worked on the site] could not read English. No system was in place to record planned or actual events. Mr Shang did not utilise a daily attendance sheet, so no record of who was on site on any particular day can be ascertained. No emergency procedures were established for the site. No hazard reporting procedure was established. 18In relation to "Risk Assessment" the statement indicated: The Project Safety Plan refers to an "Ongoing Risk Analysis". The date that this analysis was conducted by Mr Cai and Mr Shang is shown as "22 February 2004". If the analysis provided was implemented and followed, it would have addressed and controlled the numerous hazards identified after the incident. These hazards include falling from heights, lack of handrails, access and egress to the concrete area, slips, trips and falls, hazardous substances, and falling of personnel and materials through penetrations. The plan identifies Mr Cai as being responsible for the implementation of "an effective Health & Safety System", "Monthly Safety Report" and "Site Registers". There is no record of any such reports or registers being kept in relation to the site prior to the incident. 19In relation to "Subcontractor Requirements" the statement revealed the following: Subcontractors provided Safe Work Method Statements, but they were not followed nor were they used by site management, including Mr Cai and Mr Shang, to monitor the subcontractor's work. Site management, including Mr Cai and Mr Shang, did not ensure that all subcontractors complied with their workers' compensation obligations, by not ensuring that the Subcontractors Statement for workers' compensation were provided. There is no record of consultation or involvement of any subcontractors in safety walks or discussions. 20As to "Instruction" the statement indicated: No consultation was established and there appears to be no evidence of regular or comprehensive consultation, even via Toolbox Talks. Toolbox Talk sheets were provided, but those prior to the incident have no subject matter and only one or two names as persons in attendance. There was no Toolbox Talk on the day of the incident.

Maximum penalty 21Neither defendant has a prior conviction. Accordingly, the maximum penalty for the breach of s 10(1) of the Act is $550,000: see s 12(b) of the Act and s 17 of the Crimes (Sentencing Procedure) Act 1999. The maximum penalty for the breach of s 10(1) by virtue of s 26(1) is $55,000: see s 12(d) of the Act and s 17 of the Crimes (Sentencing Procedure) Act.

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.

Foreseeability of the risk 32As to whether the risk, namely, a risk of falling through an unsecured penetration was foreseeable, it clearly was. What is more, the corporate defendant knew of the risk because the safe work method statement used by the corporate defendant identified "erect temporary handrail at edge of penetration" as a control measure to be implemented at the site. The corporate defendant adopted no such measure.

Steps available to avoid risk 33Further, the Court accepts the prosecutor's submission that other simple or readily available steps could have been put in place by the defendants to control and eliminate the risk. For example, not permitting the persons working at the site to work in close proximity to the open penetration; warning those persons about the penetration; conducting a risk assessment in relation to working near the penetration; implementing site inductions to inform persons of the presence of the penetration; or securing the penetration with a dedicated cover.

Consequences of the risk 34As I recently observed in Hebron Holdings at [42], although the damage or injury caused by the contravention of the Act does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk. In the present case, the injuries sustained by Mr Markovski were serious.

Deterrence 35Both general and specific deterrence are factors to be taken into account in sentencing the defendants: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610. Falling through penetrations in buildings under construction has been the subject of a worrying number of prosecutions in this jurisdiction: see, for example, Inspector Yeung v Thiess Pty Ltd [2003] NSWIRComm 325; Inspector Yeung v Wideform Constructions Pty Ltd [2003] NSWIRComm 380; Inspector Richard Mulder v Process Engineering Group Pty Ltd and Anor [2008] NSWIRComm 36; Inspector Gjaltema v Errington and MJ Baker Constructions Pty Ltd [2010] NSWIRComm 37; Inspector Richard Mulder v Axis Metal Roofing Pty Ltd [2008] NSWIRComm 28; Inspector Hinton v Mono Constructions Pty Ltd [2011] NSWIRComm 148; Inspector Yeung v DJD Masonry Contractors [2003] NSWIRComm 236; Inspector Dunlop v Robert Shone Constructions Pty Ltd [2002] NSWIRComm 222; (2002) 118 IR 267; Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Bradley Tracey and Others [2010] NSWIRComm 106; Inspector Gelonese v Ghevondian & Hyecorp Construction Pty Ltd [2010] NSWIRComm 12; and Inspector Gjaltema v Sebastian Builders & Developers Pty Ltd [2010] NSWIRComm 144. 36Very clearly, a case exists to deter others from engaging in unsafe practices in respect of penetrations. More often than not the cases have involved serious injury. As for specific deterrence, it may be accepted the personal defendant has learned a valuable lesson from this experience and understands now the risks involved in a lax attitude to safety on the job. However, the defendants continue to operate in the construction industry and it is appropriate to include in the penalty an element for specific deterrence.

Guilty pleas 37Both defendants entered guilty pleas at a relatively early stage. However, I accept the prosecutor's submission that his case against the defendants was strong and comprised significant evidence gathered from site photographs and witness interviews. To a significant extent, the defendants' pleas were their "recognition of the inevitable": Winchester v R (1992) 58 A Crim R 345 at 350; Danial v R [2008] NSWCCA 15 at [28]. I propose to discount the penalties by 17.5 per cent for the utilitarian value of the guilty pleas.

Cooperation with WorkCover 38The prosecutor acknowledged that both defendants fully co-operated with the WorkCover Authority in and about its investigation of the incident.

Defendants' character, antecedents and background 39As I earlier noted, the corporate defendant is a small company with the personal defendant being the sole director. I also noted that English is the personal defendant's second language and I have taken that into account, although it was not put to the Court that was a handicap for the personal defendant. Neither defendant has any prior conviction and they are, therefore, entitled to a degree of leniency: Inspector Barnard v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107 at [31]. 40I am unable to conclude the defendants have shown remorse. Whilst Mr Aleksic indicated that he regretted what had occurred he nevertheless blamed Mr Markovski for creating the hazard by lifting the sheet of compressed fibro. Further, neither limb of what is required under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act has been satisfied. There was no material assistance provided by the defendants to Mr Markovski. The personal defendant said he intended to pay Mr Markovski for his services at the site. However, Mr Markovski did not receive payment for the work he performed on 28 August 2009. 41As to the question of capacity to pay, it is apparently the case that the personal defendant will carry the burden of any fine imposed on the corporate defendant. However, if the defendants had wished to invoke the discretion of the Court by reference to s 6 of the Fines Act 1996 it was necessary to adduce the evidence in a proper form which was capable of being tested by the prosecutor and was capable of being understood by the Court: WorkCover Authority of New South Wales (Inspector Jones) v Protogeros; WorkCover Authority of New South Wales (Inspector Jones) v Carrier Electrical Services Pty Ltd [2005] NSWIRComm 237. That did not occur. 42The Court has had regard to the fact that costs may be taken into account in determining the penalty.

Conclusion 43Having regard to the objective and subjective factors relevant in these proceedings, the conclusion is unavoidable that the offences were serious and deserving of significant penalties. I am most conscious of the fact that the defendants were not legally represented and perhaps unable to put forward their best case. However, I consider the prosecutor and the Court have treated the defendants fairly and it is difficult to envisage that legal representation would have resulted in lower penalties than otherwise is the case. 44I have decided that the appropriate penalty to apply to the corporate defendant is $120,000 and to the personal defendant $15,000.

Orders 45The Court makes the following orders: Matter No IRC 1399 of 2011 (1) The defendant is found guilty of the offence charged under s 10(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $120,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Matter No IRC 1400 of 2011 (1) By virtue of s 26(1) of the Occupational Health and Safety Act 2000 the defendant is found guilty of the offence charged under s 10(1) of that Act. (2) The defendant is fined an amount of $15,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed.

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: 30 May 2012