Inspector Victor Larobina v Charbel Ibrahim; Inspector Victor Larobina v... [2007] NSWIRComm 198 | Case summary

1 Charbel Ibrahim and Sammy Soliman both entered guilty pleas to breaches of s 8(1) and s 8(2) respectively of the Occupational Health and Safety Act 2000 in connection with a workplace injury that occurred on 18 June 2004 at Sutherland. Mr Ibrahim was the on-site manager of Chubs Construction ("Chubs"), a corporation engaged to perform carpentry work at the Sutherland site. Mr Ibrahim was not a director of Chubs (although his wife was a director): it was alleged that in his position he was concerned with the management of the company which had contravened s 8(1) of the Act and because of his position, had also breached the Act pursuant to the operation of s 26(1). Mr Sammy Soliman was a director of Soliman & Sons Pty Ltd ("Soliman & Sons") and was director of construction and construction manager for that company at the Sutherland site. Soliman & Sons had contracted Chubs to perform carpentry works on the home units under construction at the site. It was alleged against Mr Soliman that, as a director and as construction manager, he was in a position to influence the company's conduct and that he was in breach of s 8(2) of the Act by operation of s 26(1) of the Act because of the company's contravention of s 8(2). 2 Proceedings had been commenced for breaches of the Act by Chubs and Soliman & Sons but those proceedings were withdrawn and not proceeded with when both companies were placed in external administration. 3 The incident giving rise to these charges occurred on 18 June 2004 when an employee of Chubs, Mr Sammy Chamma, fell 5 to 6 metres from an open and unguarded landing in the course of performing work with a nail gun while standing on a step ladder that was not secured Mr Chamma sustained serious injuries including fractures to his knee, elbow, wrist, eye socket, cheekbones and jaw and also sustained a broken tooth. He suffered double vision in his left eye. By the end of September 2004, Mr Chamma was experiencing continuing back and chest pain and did not know when he would be able to return to work. 4 The charge against Mr Ibrahim was particularised as follows: (i) The company failed to provide and maintain systems of work for its employees working at height that was safe and without risk to health in that: (a) it failed to ensure that risk of falling from a height was controlled by the provision and maintenance of any or any adequate fall protection at the site; (b) it failed to ensure that any and all ladders used at the site were properly tied off and/or footed while being used; (c) it failed to conduct any or any adequate risk assessment of the work to be performed at the site; and (ii) The company failed to provide such information, instruction, training and supervision to its employees as was necessary to ensure the employees' health and safety at work in relation to working at heights. (iii) The company failed to ensure that the working environment of its employees was safe and without risk to health in that there was a significant amount of building debris on the balcony where the ladder was set up. (iv) The company failed to ensure that the injured worked was provided with a site specific induction. 5 In relation to Mr Soliman, an Amended Application for Order particularised the offence as follows: (i) The company failed to ensure that the risk of falling from a height was controlled by the provision and maintenance of any or any adequate fall protection for persons working on the balcony. (ii) The company failed to ensure that any and all ladders used at the site were properly tied off and/or footed while being used. (iii) The company failed to conduct an adequate risk assessment of the risk of unsupervised non-employees gaining access to restricted balconies on the site. (iv) The company failed to ensure that, the working environment of non-employees was safe and without risk to health in that there was a significant amount of building debris on the balcony where the ladder was set up. (v) The company failed to ensure that following the removal of scaffolding at the site which resulted in numerous balconies being left without fall protection, the injured worker received such site specific induction training as was necessary to enable him to carry out work safely despite the change. 6 By consent of the parties both matters were heard together although there were some differences in the evidence and the Agreed Statement of Facts. The Agreed Statement of Facts in each matter appears as an annexure to this judgment. 7 In addition to the Agreed Statement of Facts, the prosecutor's evidence included the following: (a) a number of photographs of the site showing the unfenced balconies protruding as a slab from a three level home unit under construction; (b) a certificate of prior convictions certifying that neither defendant nor the companies with which they were associated had prior convictions; (c) Improvement Notices issued on 25 February 2004 to Soliman & Sons stating that employees and persons may be exposed to risk of injury while working at heights, namely, working on levels 1 and 2 without handrail perimeter scaffolding or other type of restraint and also that employees or persons may be exposed to the risk of injury due to obstructed passageways, walkways, stairways, public rear lane and front footpath and slippery floors with water. Included amongst the measures to be taken was the provision of a safe system of work for working at heights and providing safe and unhindered access and egress to and from the workplace; (d) a safe work method statement prepared by Chubs laying down the control measures of wearing a harness or working off a scaffold in the performance of certain parts of the work; (e) a site safety walk check sheet dated 11 June 2004 noting that there were no harnesses for carpenters in a boom lift who were working on the balcony without handrails. The document also noted that there were balconies without handrails with men working on those balconies. An earlier safety walk document from 4 June 2004 noted that there were a number of balconies requiring handrails and that these should be installed as a matter of urgency, that rubbish and debris needed to be cleaned from the balconies, that harnesses would be required and that a safety harness was to be purchased to allow balconies to be clean and handrails installed. A secure anchor point at each location was to be provided. (f) two multi-purpose forms used by Soliman & Sons Pty Ltd dated 15 June 2004. The first directed to Patrick Atra from Ray James notifying non-conformance in that scaffolding had been taken down, that a number of balconies were not protected by handrails and requiring rectification of the situation as a matter of urgency. The second form directed to ABC Scaffold from Soliman & Sons stated that handrails were required on all balconies which currently did not have safety rails; (g) the Soliman & Sons project specific occupational health and safety plan for the Sutherland project; and (h) two site drawings. 8 Oral evidence was called from Charbel Ibrahim. Mr Ibrahim was not employed at the time of giving his evidence. He was the on-site manager at Sutherland after Chubs had been contracted by Soliman & Sons. He said he was on the site for approximately three months and, although he could not remember the date, he had attended a brief site induction. That occurred approximately six weeks before 18 June 2004. He said he was the most senior Chubs person on the site. At the induction, David Boswell from Soliman & Sons was present: Mr Soliman was not at that induction. Mr Ibrahim said that the induction was very brief and involved signing site induction forms and being given a green card. He was not supplied with any work method statements or any occupational health and safety management plans. He had not been shown at the induction and did not recall seeing while on site the Soliman & Sons project specific occupational health and management plan. After looking at that document, Mr Ibrahim thought that none of the matters contained in that document had been raised or dealt with at the site induction he attended. 9 In cross-examination, Mr Ibrahim agreed that he was the most senior person from Chubs at the site and had been given that role by a director of Chubs: in any event, he was the most experienced person from the company on the site. In his role on the site he had tried to discuss safety with the principal contractor but not much had happened in that regard. He had spoken to Mr Atra, the site foreman for Soliman & Sons, before he left the site and before the accident. He was not satisfied that the site was safe for Chubs workers because they required a cherry picker to perform their work after the scaffolding had been removed. Chubs workers had been told to work only from cherry pickers. Mr Ibrahim said that on numerous occasions he had told Mr Boswell, the project manager for Soliman & Sons, that the site was unsafe and that they would not be completing the job. Mr Ibrahim did not attend the site after the accident. He did not ask if there was a site occupational health and safety plan and he was not aware that such a plan was kept in the site office. He was not examined or cross-examined as to the details of his financial circumstances or if he expected to be discharged from bankruptcy at any particular time. 10 The prosecutor also called oral evidence from Mr David Boswell. On 18 June 2004, he was working for Soliman & Sons as a project manager and in that role called into the site once or twice a week. He was present at the site on the day of the accident and before it occurred, but because he was working in other areas he was not aware that the carpenters from Chubs were on site. He denied telling the carpenters that they had to complete the work on the gables with a ladder or they would not get paid. He had been at the site at 8.00 am and the accident occurred mid-morning. 11 In cross-examination, Mr Boswell said that when he arrived at the site the site foreman had reported ill and he was in the process of arranging a replacement. While he was at the site he was not acting as the foreman and he did not inspect the whole of the job, although he could see the balconies and perhaps the gables: there were a number of them. While on site, he was not aware Chubs' employees were present and he did not speak to them. While on site he spent his time with the scaffolding contractor putting up scaffolding. He was doing this work at the back of the site and said that the carpenters could have come through the front of the site while he was performing this work. 12 In Mr Ibrahim's case, a short personal reference was provided by a construction company indicating that Mr Ibrahim had completed numerous projects and had worked in a safe manner. In an affidavit, Mr Ibrahim said that, at the time of the accident he was the manager of Chubs. He was 27 years old, married with two children with a third child on the way. He described himself as an undischarged bankrupt having been made bankrupt on 18 June 2004. Chubs was in liquidation. Mr Ibrahim said that he was presently working as a carpenter doing whatever work came his way. Mr Ibrahim said that he had concluded his apprenticeship and a TAFE course in carpentry and while obtaining that trade qualification, he gained knowledge about work safety issues and the need to maintain a safe workplace. He also studied business management and occupational health and safety as part of his studies. 13 At the beginning of a new job for Chubs, Mr Ibrahim usually inspected the worksite and prepared a safe work method statement. He usually made the employees aware of the terms of the statement and any particular problems with the site. He also held weekly meetings on Fridays when safety issues would be discussed. He said that all Chubs tradesmen had safety equipment supplied by the company such as helmets and harnesses. Between the formation of Chubs in 2001 until 2004, the company was involved in constructing roofs and associated structures, over which time the company worked on between 50 - 60 sites including sites similar to the Sutherland site where Mr Chamma was injured. Prior to the date of the accident, the company had employed five workers including Mr Chamma who was an apprentice carpenter in his final year. Up until that accident there had been no workers compensation claims against the company and no history of the company's employees being hurt at work. 14 At the Sutherland project, Mr Ibrahim completed a safe work method work statement but his first statement was rejected by Soliman & Sons. He submitted a revised statement which was accepted and then commenced work on the site. He did not recall being given any occupational health and safety material by Soliman & Sons. 15 When Chubs entered the site for the first time there was scaffolding on the building but about two weeks before the accident the scaffolding was dismantled. After the dismantling of the scaffolding Chubs did not do any work on the balconies and requested that safety rails be installed. This request was made on numerous occasions and was made to Soliman & Sons foreman at the site, Mr Atra. Mr Ibrahim was told that the safety rails would be installed and he instructed Chubs workers not to work without the required railing. A few days prior to the accident, he had a conversation with Mr Boswell from Soliman & Sons who told him that they needed Chubs to complete the gables. Mr Ibrahim asked where the safety rails where and Mr Boswell informed him that Soliman & Sons were hiring a cherry picker and that the Chubs carpenters could use that equipment. On 17 June 2004, Mr Ibrahim spoke to two of his workers, Mr Chamma and Sarkis Ibrahim, and told them that on the next day they were to work on the gables: he told them to make sure they had the cherry picker to do that job. Mr Ibrahim was contacted by telephone at approximately 9.20 am the following day and informed that Mr Chamma had fallen from the balcony and suffered injuries. Mr Sarkis Ibrahim told him that "David" had told them to complete the gables with a ladder or their boss would not be paid. It became apparent that the cherry picker was not made available to Chubs workers on the day. 16 Mr Ibrahim stated that "at the present time" he had "limited capacity" to pay a fine because he was a bankrupt. He expressed his sorrow for the injuries received by Mr Chamma who was a young man just starting out in life and had suffered this type of injury. He considered Mr Chamma a friend and had attended social functions with his family. He regretted not being present at work when the accident occurred and stated that had he been present the accident would not have happened. 17 In the case for Mr Soliman, two affidavits he had sworn were read and relied upon together with a number of annexures. Mr Soliman said that the company had been placed into liquidation in May 2006, having been incorporated in late April 1991. The company had been largely involved in building residential unit blocks up to a value of approximately $10 million. The only other director of the company was his brother although, in the early years, his parents were directors but they resigned in 2003. Mr Soliman was the director of construction and overseer for the operations of the company, so that he was involved in liaising and overseeing the various managers on the projects that the company was carrying out from time to time. He estimated that he was on site for 60 per cent of his working time and performed administrative and other duties for the remaining 40 per cent of his time. The company had a full-time site manager/foreman, Mr Atra, a project manager, Mr Boswell, and an occupational health and safety manager, Mr Ray James. Mr Boswell and Mr James were employees of the company and Mr Atra was employed by his own company which supplied his services under contract to Soliman & Sons. Mr Atra's services were provided virtually full-time from approximately 2002. Mr Atra did not return to the company after 17 June 2004 and Mr Boswell and Mr James had since left employment with the company. 18 While the company operated on a smaller scale in its early years carrying out two projects at any one time, between 2003 and 2005, the company prospered and was carrying out not less than eight building projects across the metropolitan area. During this period, the company employed approximately 20 people including site managers, project managers and site foremen. It was also sub-contracting work to at least 100 contractors in the construction industry. In 2006, the company suffered a liquidity crisis because of the failure of a developer on a large project to make contract payments. As a consequence, the company's bank appointed an administrator and shortly after the company resolved to go into voluntary liquidation. 19 Mr Soliman spoke of the company's commitment to occupational health and safety and that, in view of his carpentry background, he had appointed Mr James as the occupational health and safety manager to create the occupational health and safety system and to bring forward recommendations on safety to ensure that the company's systems were properly implemented and carried out. Mr James was experienced in occupational health and safety and appeared to be knowledgeable in that field. In occupational health and safety matters Mr Soliman relied on the expertise of Mr James: recommendations by Mr James were implemented by Mr Soliman and through Mr James he ensured that the corporate safety manuals and site specific occupational health and safety manuals were reviewed and updated from time to time. These reviews were carried out by Mr James and his recommendations were implemented. 20 Reference was made to the site specific occupational health and safety management plan which encompassed the company's safety objectives, policies and practices applicable at every site. Mr Soliman said that the safety responsibilities allocated to him were carried out through his appointment of Mr James as the occupational health and safety manager: Mr James was instructed to prepare the documents and, generally to be in charge of, implement and oversee the company's safety policies and procedures. Mr James was given full responsibility and support with Mr Soliman available to him at all times. Project managers also implemented occupational health and safety procedures, while the site manager was to ensure that all persons on site received induction training and that the company's safety procedures were implemented. The project manager and site manager were important positions to effect the on-site implementation of the company's policies. A detailed explanation of the operation of his corporate occupational health and safety manual was given by Mr Soliman who noted that Mr James, as the occupational health and safety manager, was the author of the site specific occupational health and management manual and it was part of his duties to bring these documents into existence and to oversee their implementation. 21 Within a week of the accident, Mr Soliman convened a meeting of all foremen and project managers employed by the company (numbering ten). Mr James was asked to brief the meeting on the accident and to outline that the purpose of the meeting was to review the company's safety procedures. Mr James was asked to explain step by step what occurred at the site on 18 June 2004, to identify particular hazards and events, to analyse them and to nominate whether improvements could be made. Mr Soliman told this meeting that if risks were identified but no action taken, the job was to stop. A number of subjects were discussed including: site registration forms (which were present at the Sutherland site but not completed by Mr Chamma on the day); the risk assessments being performed fortnightly by Mr James, noting that recommendations were not being acted upon;, the need for action where risks were identified and requiring immediate action; and, a discussion of the consequences of not acting on risks in a speedy manner. As a direct consequence of the accident at the Sutherland site, Mr Soliman decided to pay closer attention to the performance of Mr James. This course was taken because it appeared to Mr Soliman that, after the accident, while Mr James prepared reports and regularly made recommendations and passed instructions, he did not follow up on a regular basis on the recommendations or instructions nor did he ensure their implementation. Mr Soliman expected that Mr James would either ensure that site managers or project managers adopted the recommendations or that he would take direct action himself, but this did not appear to occur. A particular example arose from recommendations sent to Mr Soliman following a safety walk at the Sutherland site on 4 June 2004. Mr Soliman asked Mr James to highlight items completed and to organise another site meeting with the site foreman at which Mr Soliman could be present. Neither Mr James nor the site foreman attended to those items or arranged the meeting with Mr Soliman, although he accepted it was his responsibility to follow up the failure of these two employees to attend to their duties. Mr Soliman said he ultimately became unhappy with Mr James's performance and, after speaking to him on two or three occasions to urge him to improve his performance, his employment with the company was terminated. 22 Mr Soliman said that as director of the company he accepted responsibility for the accident and the statutory breaches that had occurred. As a consequence of the accident and his review of it, Mr Soliman made a number of comments. The procedures and measures set out in the site specific occupational health and safety management plan and the occupational health and safety manual were adequate and, if properly implemented, might have prevented the accident. It was incumbent on everyone involved to ensure that safety procedures were followed although Mr Soliman accepted the ultimate responsibility lay with him: nevertheless, Mr James, Mr Atra and Mr Chamma had acted outside designated procedures, requirements and directions. 23 Mr Soliman pointed to a number of failures by Chubs as contributing to the risk to safety on the site. Chubs had been issued with a direction to clean up the site, while the site foreman had been told on 15 June 2004 that, with the scaffolding being removed, there were a number of balconies not protected by handrails. Mr Atra was directed to rectify the situation as a matter of urgency and the scaffolding company was similarly notified. Chubs were notified on 16 June 2004 that the boom would be kept on site so that its workers could use it on that day although it was not used by the company that day. On 4 June 2004, there had been a report on a safety walk requiring the urgent installation of rails on balconies, the cleaning up of rubbish on balconies and noting that a harness would be required. Mr Chamma had been inducted, was aware of occupational health and safety procedures including the need to wear protective equipment. Despite these matters there was no compliance with the company's directives. Mr Soliman as director of the company accepted that, ultimately, the failure was his responsibility but he put that responsibility in the context of Mr James understanding the need to implement the safety procedures and enforce those procedures, including the multi-purpose forms and safety recommendations. In Mr Soliman's view, Mr James appeared to regard his role as ending with a written recommendation and thus he ignored the implementation aspects of his job description. Mr Soliman said he was unaware of these deficiencies in Mr James's role as at 18 June 2004 and, while he was responsible for that state of unawareness, he believed that a more positive contribution by Mr James would, at least, have ensured that the balconies were clear and railed. He had promptly responded to requests by Mr James, including $120,000 spent on scaffolding at the project and $24,000 spent on the hire of a boom lift which was left permanently on the site. Mr Soliman also regarded the site manager, Mr Atra, as being deficient in performing his safety duties because he was responsible for and should have complied with the multi-purpose forms and recommendations. It was also noted that Mr Chamma ignored the availability of safety equipment such as the harness and the boom lift: he had also been told by Chubs to work on the gable using the cherry picker. The accident to Mr Chamma was the first accident or injury the company had experienced since commencing its business. 24 In relation to the site itself, Mr Soliman said that his company had contracted with the Department of Housing to construct a three storey 27 unit apartment block at the Sutherland site. The Department had engaged a project management company to act as superintendent and that company was to monitor progress and provide overall management for the site. Mr Soliman had a full-time foreman (Mr Atra), a project manager (Mr Boswell) and an occupational health and safety officer (Mr James) at the site. Chubs had been sub-contracted to complete all roof framing, roof battens, eaves and gable linings. Prior to Chubs commencing work, Mr Ibrahim was required to provide a safe work method statement. The original document submitted by Chubs was rejected by Mr James and a more detailed document was provided and accepted after review. In the documents provided to Soliman & Sons, Chubs identified Mr Chamma as a tradesman when he was, in fact, an apprentice which led to Mr Soliman's company treating Mr Chamma as a qualified carpenter. 25 After the accident, Soliman & Sons and its staff co-operated with all enquiries regarding the accident and the site was closed so that all accident reports could be completed. When the site was re-opened, the company complied with an improvement notice served on it by the WorkCover Authority. A boom lift was on site and had been used the previous day on other sections of the building. On the day of the accident, the boom lift was being used by tradesmen involved in installing fascia gutters and Mr Boswell informed Mr Soliman that had he been aware of Mr Chamma and his co-workers on the site, they would not have been permitted to work on the balcony. Safety harnesses were available and provided but Mr Chamma was not wearing one. The safe work method statement indicated that staff use harnesses while working at heights. It was also noted that whilst the balcony did not have railings on the morning of the accident, scaffolders had arrived on site to install handrails on all of the unprotected balconies, including the one being worked upon by Mr Chamma. 26 As to procedures on the site, Mr Soliman said there were weekly site safety walks noting hazards or dangerous items followed by the issuing of directions for rectification. The site specific occupational health and safety management plan directly dealt with the use of safety harnesses and stated, in relation to roof work and work in unprotected areas, that no work was to commence until the supervisor had inspected the areas and given clearance to commence work. Employees were directed to use a harness or other means of fall arrest in areas where a fall of greater than 1.8 metres was possible. Mr Boswell supervised the work being carried out on site and bins were provided for site cleanliness. Safe access ways were provided for workers to access buildings which were highlighted by red and white danger tags. 27 Following Mr Chamma's injury, Mr Soliman contacted the hospital to ascertain his condition. He contacted Mr Ibrahim daily to enquire as to Mr Chamma's progress and offered to contribute to his medical bills. A cheque for $5,000 in favour of Mr Chamma was sent to his trade union. Following the accident the site was closed for three days while the handrails were installed on balconies. Mr Soliman described his feeling of shock on learning of the accident as it was the first accident or injury in the history of the company. He had a sense of guilt and regretted that he had not done more to ensure that the site foreman and project manager as well as the occupational health and safety manager had implemented the company's site specific safety procedures. Mr Soliman stated that the incident and its consequences had been very difficult for him and had given him a firm resolve to do everything within his power to prevent anything like it occurring the future. He expressed concern for Mr Chamma's future welfare and described how the company had come to the assistance of other employees in times of difficulty. The company, including Mr Soliman and his brother, had donated many thousands of dollars to the needy in Africa and with his wife had sponsored two African children. Mr Soliman donated substantial amounts of money to the Coptic Orthodox Church. 28 In a separate affidavit, Mr Soliman dealt with his financial circumstances. Soliman & Sons had been placed in administration in February 2006. At that time, the combined debt owed to his company was $4.75 million. After his company was placed in administration there were a number of meetings with creditors over approximately three months; Mr Soliman spent the time preparing for and attending meetings and providing information to the Administrator. Once the company was placed in liquidation, several creditors looked to Mr Soliman for payment of the debts rather than the company. He stated that for approximately one year he was unable to work because of the time he was spending in dealing with the claims of various creditors. Mr Soliman provided details of trading creditors with sums owed as low as $15,000 up to $132,000. He described his major creditors as Suncorp Ltd and the Australian Taxation Office. Suncorp had advanced approximately $14 million to the company and Mr Soliman expected that the shortfall would be in excess of $2 million. He and his brother had guaranteed the advances of Suncorp and he was in no doubt that the company would look to him for payment. After the company was liquidated, he received a demand from the Taxation Office for personal income tax of approximately $120,000. There were extended negotiations and agreement was reached allowing Mr Soliman to pay nearly $85,000 by monthly instalments of $500. He had been borrowing the instalment payments from his father and has been making the payments for approximately one year, but they did not cover the interest accruing on the principal debt. 29 Mr Soliman described a number of his trade creditors as being relentless in pursuing him for payment. Each trading creditor had served him with correspondence and legal process requiring him to raise queries as to how the claims were constituted and involving him in endeavouring to seek time for payment or explaining why the claim was rejected. Mr Soliman said he could not afford lawyers and has had to deal with the trading creditors himself and he found it impossible to do so and continue working. It was in those circumstances that he did not work from the date of liquidation of the company to early May 2007: during this period he and his family lived on the earnings of his wife who was employed as a teacher earning approximately $40,000 per annum. Mr Soliman described his endeavours to stave off trading creditors as failing and the despair he felt. In early July 2007, he was served with a Bankruptcy Notice by one of his trade creditors. Each of the trading creditors had served him with a Statement of Claim which had involved him in correspondence, court processes and receipt of many telephone and personal calls threatening him and requiring payment of the debt to be made by Mr Soliman. Mr Soliman said he did not have the funds to pay one of the trading creditors, let alone all of them and, after receiving the Bankruptcy Notice, he doubted that would be able to avoid the consequence and he had to consider the possibility of becoming a bankrupt. 30 In relation to his own employment, Mr Soliman said that, in early May 2007, he was approached by an acquaintance to perform refurbishment work on a hotel which he was presently undertaking. When he began that work, he was not able to perform the work full-time. However, in the last few months he had been working virtually full-time on the project. He expected the job would last approximately 12 months and anticipated his earnings for that period would total approximately $50,000 which would be his only income. His only asset of substance was a five per cent share of his home, with his wife owning 95 per cent of that property, which he estimated to be worth approximately $850,000. However, there was a debt of approximately $830,000 over the property, owed to Suncorp. 31 Mr Soliman gave oral evidence and was cross-examined. Mr Soliman had been present at times when site inductions had been conducted by his company and he indicated the detail of matters that in his experience were usually covered There were monthly meetings with the project managers and site staff and it was frequently a topic of discussion as to how inductions were to be carried out and what amendments were necessary to the usual induction practice. Mr Ibrahim had not contacted him to raise any complaint about the inadequacy of the inductions at the site nor had he raised any safety problems with Mr Soliman. 32 It was Mr Soliman's practice to visit the site about once a week: he spent approximately 60 per cent of his time visiting all the sites and there were about eight or nine at any time. The day-to-day running of the site was left to the foreman, project manager and Mr James. Mr Soliman thought he would only speak to a contractor if there was a difficulty that had not been resolved with his management staff. Mr Soliman thought he had spoken to Mr Ibrahim on a few occasions including the time the sub-contract was signed and said that he may have seen Mr Ibrahim on site from time to time but he could not recall when. Mr Soliman said it was not his position to speak to Mr Ibrahim about site induction or safety induction at the site. DELIBERATION 33 There can be no doubt that the circumstances of these offences constitute a serious breach of the Act. Two of the less experienced employees of Chubs were working on a balcony without any protection by way of safety railings or harnesses, using a ladder that had not been secured and working amongst building rubble from where there was a risk of falling a considerable distance. Both defendants have different reasons for not addressing this risk. In the Chubs workforce Mr Ibrahim was not present and I accept the submission that had he been present it was likely that this accident would not have occurred. As the senior employee on site he had previously directed that work should not take place in the absence of safety railings: there was a harness available to his workers. The Chubs workers had been instructed not to work above ground without using the cherry picker. On this particular day, Mr Ibrahim had not arrived at the site and these actions were taken without regard to his instructions. In the case of Soliman & Sons, the evidence shows attention was usually paid to proper workplace inductions and the implementation of detailed safety instructions but, despite the presence of a project manager, a foreman and an occupational health and safety manager, a number of important instructions about the installation of safety railing on balconies was not promptly carried out nor were steps taken to prevent sub-contractors from working on the balconies until the railings were installed. On the day of the accident, the cherry picker was on site and would normally have been available for the use of Chubs employees but was being used by other tradesmen at the time. Mr Soliman's expectations of the duties to be performed by Mr Atra and Mr James required some monitoring by Mr Soliman. While he ultimately accepted his responsibilities, his evidence pointing to the deficiency of others carried an inference that if only those to whom he had entrusted workplace safety had performed their duties properly, Mr Soliman would not be facing this charge. 34 Notwithstanding the different roles being played by the defendants at the site, I accept the submissions made that, broadly speaking, these two defendants are to be considered as equally culpable for this serious breach. The issues of general and specific deterrence require consideration. Fall injuries in the construction industry are all too frequent occurrences. The breaches by these defendants again demonstrate the requirement to go beyond the laying down of safe work methods and demonstrate the need for ongoing enforcement of safe systems of work. Specific deterrence needs to be considered in light of the fact that both Mr Ibrahim and Mr Soliman have lost their companies and now appear to be employed from time-to-time on their own accounts and not as directors or as persons involved in the management of a construction company. Bearing those matters in mind, there should, nevertheless, be an element for specific deterrence within the penalties determined. 35 As to subjective factors, both defendants pointed to the fact that they had systems of safety in place. Mr Soliman, in particular, pointed to the fact that the risk had been identified and addressed and that, in fact, railings were being installed on the day of the accident. Both defendants relied on their clear record and are entitled to have that taken into account, bearing in mind the nature of the industry in which they work. Both these pleas may be considered as early pleas of guilty and a discount of 25 per cent in both cases is appropriate. The prosecutor accepted that there was co-operation in the investigation. All these matters will be taken into account in mitigation of the penalty. 36 The factor on which the most significant emphasis was placed in the submissions concerned the financial position of each of the defendants. Mr Ibrahim was a declared bankrupt and had not been in contact with the Trustee in Bankruptcy for some time and had no information to place before the Court as to when he might be discharged. He worked from time-to-time but no details of his earnings and the extent of his outstanding debt was before the Court. He was not examined or cross-examined as to the details of his financial position. Mr Soliman submitted that, while his company was in liquidation, debts incurred in conducting the business were now sought to be pursued against him personally and he had recently been served with a Bankruptcy Notice although he had not yet been declared a bankrupt. Again, there was no cross-examination in relation to this information nor was there any examination as to how company debts have become debts for which he was claimed to be personally liable, although there was some limited evidence of being a guarantor. It was submitted on his behalf that it was inevitable that he would be declared bankrupt because his debts exceeded his income but, apart from the serving of a Bankruptcy Notice, no further step in that process had yet occurred. Additional documents tendered on behalf of Mr Soliman showed that there were judgements for other debts and at least one other threat of serving a bankruptcy notice. 37 The operation of s 6 of the Fines Act 1996 has been considered on a number of occasions by this Court and its predecessors. In those cases, it has often been stated that a fine is not to be oppressive or crushing in its effect but, at the same time, the exercise of the discretion under s 6 of the Fines Act must result in a penalty that ultimately reflects the object seriousness of the offence (see Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209; WorkCover Authority of New South Wales (Inspector Farrell) v Shrader (2002) 112 IR 284 at 308-309; Manpac Industries Pty Ltd v WorkCover Authority of New South Wales (2001) 106 IR 453). Nevertheless, s 6 of the Fines Act requires the Court, in the exercise of its discretion, to fix an amount of any fine, to consider such information regarding the means of the accused as is "reasonably and practicably available to the Court for consideration". Some consideration of this provision, especially in relation to a bankrupt offender, was undertaken in Inspector Stephen Cooper v Quality Formworks Pty Ltd and anor [2007] NSWIRComm 123. In that case, the approach to s 6 of the Fines Act was considered in the context of the judgment in Friends of Hinchinbrook Society v Minister for Environment (No 3) (1997) 77 FCR 153 (at 188) where Hill J stated: There is always a difficulty when a statute provides that a decision-maker shall 'have regard to' a particular matter or series of matters. While it is clear that what is meant is that the decision-maker must apply his mind to the matter or matters stipulated, and 'take them into account and give weight to them': cf R v Hunt; Ex-parte Lean Investments Pty Ltd (1979) 25 ALR 497 at 504 per Mason J, it leaves it open what weight or influence each of the particular matters is to have in the decision to be made: cf Windeyer J in Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365 at 384. Sometimes the statute, will as in the case of Giris, direct regard be had to an indeterminate category of such other matters as the decision-maker may regard as relevant. 38 General guidance was also obtained from the judgment of New South Wales Court of Criminal Appeal in R v Rehame (1989) 43 A Crim R per Finlay J (with the concurrence of Studdert J at 86) where it was stated: The imposition of a large fine involves a number of considerations. It is trite to say that a court generally should not impose a fine which the offender does not have the means to pay, even though these days failure to pay a fine does not lead to imprisonment but to a civil execution for its non-payment.

Inspector Victor Larobina v Charbel Ibrahim; Inspector Victor Larobina v Sammy Soliman

At a glance

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Judgment (22 paragraphs)

Legislation Cited (1)

Cases Cited (8)

Cited By (2)