R v Sapform Pty Ltd

R v Sapform Pty Ltd - [2020] NSWDC 86 - NSWDC 2020 case summary — Zoe

[4]

Systems of Work before the Incident

The accepted industry standard safe work sequence requires that the following specific, methodical order is followed when laying formwork: 1. Lay all bearing timbers, then 2. Lay all joisting timbers, and only then 3. Lay formwork boards and place those boards in such an order so as to minimise exposed leading edges, and if necessary 4. Patch or cover any voids left for columns and mark them 'danger penetration below'.
It is apparent from the photographs and videos taken on the construction site, immediately following the incident, of the missing joist timbers in the Level 2 deck, the gaps between the edge of the Level 2 deck and the scaffolding, and the uncovered penetrations in the Level 2 deck, that the formwork that was being completed on the Level 2 deck was not being done in accordance with the accepted industry standard safe work sequence and had not been done in accordance with that sequence for at least several hours prior to the incident.
Prior to the incident, an agreement had been reached by KNT and the defendant that KNT would erect a perimeter scaffold to provide some protection to the upper decks, including the Level 2 deck, where the formwork was to be erected. Once that scaffold was erected, it was the responsibility of the defendant to install any additional fall protection, in accordance with Schedule 1 of the contract between KNT and the defendant. This additional fall protection would include all necessary fall prevention devices including the supply and installation of hand rails or catch decks. Schedule 1 of the contract between KNT and the defendant permitted the defendant to temporarily infill penetrations, such as by installation of steel mesh provided by KNT.
At the time that he was undertaking the construction of the formwork for the Level 2 deck, Mr DaSilva was working without direct supervision. The defendant failed to provide adequate supervision to Mr DaSilva while he was engaged in construction of the formwork for the Level 2 deck to ensure that laying joists and plywood was undertaken in accordance with the industry standard when he was working on the leading edge.
KNT had appointed a project team to oversee the implementation of Work Health and Safety ('WHS') strategies and policies at the construction site. KNT had a WHS system in place including:

A WHS Site Specific Plan;
Regular site inspections;
Site Safety Inductions (which included obtaining a white card from each worker); and
Emergency Evacuation Plan.

In accordance with the KNT WHS system, when Mr DaSilva commenced work on 10 October 2016 he received induction training.
There were no documented risk assessments undertaken in relation to the formwork as it progressed at any stage of the works at the construction site.

[8]

'Formwork, Code of Practice 1998, WorkCover NSW'

While this Code of Practice was developed based on previous WHS legislation which was replaced with the Act, it is still current and can be relied on to instruct duty holders on how to meet their WHS obligations in relation to formwork.
Section 3.2 of this Code of Practice outlines planning practices a principal contractor should (in consultation with its contractor) employ before commencing formwork on a construction site, including: 1. An assessment of the risks involved in carrying out the work; 2. Identifying the most appropriate methods to control any risk of injury. These include safeguards such as guardrail systems (including toe boards), perimeter safety screens and barriers, and fall arrest systems; 3. Providing suitable and safe access to and from the construction site including each place of work; and 4. Ensuring that all persons carrying out the work have received appropriate training and instruction.
Section 3.3 of this Code of Practice outlines planning practices a contractor (sub-contractor) should carry out in addition to those in consultation with the principal contractor, including: 1. An assessment of the risk in carrying out the work; 2. Identifying the most appropriate methods of preventing the risk of injury including falls, slips and trips; 3. Providing a documented work method statement describing the 'sequence of work tasks and activities and how the work is to be done safely.' This work statement should take into account an assessment of the risk involved in carrying out the work; 4. Ensuring that the sequence of work tasks is designed to increase safety; 5. Minimising the working heights for persons erecting and dismantling formwork; 6. Ensuring all formwork materials such as joists, bearers, plywood, support frames, jacks and U heads comply with the specification and relevant codes and standards and are used in accordance with manufacturer's specifications; and 7. Suitable and safe access must be provided to and from the construction site including each area of work. This should include planning the position of frames to ensure safe access such as persons walking between frames.
Sections 4.1 to 4.3 refer to the prevention of falls, including appropriate methods of edge protection.

[15]

OBJECTIVE SERIOUSNESS OF THE OFFENCE

The duties of the defendant require that it ensure the health and safety of workers as far as reasonably practicable. As the defendant has pleaded guilty, it has admitted that the measures to ensure safety would have been reasonably practicable. This duty is not delegable, and the defendant cannot escape its liability as a consequence of its contractual relations with other parties, as the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking into account such factors.
The Court of Criminal Appeal examined the approach to sentencing in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96; in which Basten JA said as follows: 'The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than to guard against the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including: the potential consequences of the risk, which may be mild or catastrophic; the availability of steps to lessen, minimise or remove the risk; and whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors. ….. The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.'
The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, the more serious the offence will be.
Mr Arrilucea swore an affidavit on 20 March 2020 which was tendered and became Exhibit 1. He was required for cross-examination by the prosecutor.
In his affidavit, Mr Arrilucea expresses his heartfelt remorse, personally and on behalf of the defendant, that the incident occurred and that Mr DaSilva tragically lost his life. I accept his remorse that Mr DaSilva lost his life.
The affidavit then provides information as to the relationship between Mr Arrilucea and Mr DaSilva, in that they had previously worked together on other worksites undertaking formwork. It states as follows; '11. Over this 15 year period, on each and every occasion that I have worked with Mr DaSilva, I observed that he followed the accepted industry standard sequence that is detailed at paragraph 18 below. On each occasion that Mr DaSilva was engaged by the defendant, he would have been provided with the Defendant's Safe Work Method Statement (SWMS). 12. As part of Mr DaSilva running his own business, he was also running his own jobs and was undertaking work for other people. To my knowledge, when Mr DaSilva was undertaking work for his own business he had his own formwork carpenters assisting him. …… 17 On the day of the incident Mr DaSilva's role was to install the joists and lay plywood. Mr Arbildo had worked with Mr DaSilva on a number of previous occasions and was satisfied that Mr DaSilva had knowledge of how to safely install and lay plywood in the proper sequence. 18. Mr Arbildo was satisfied that Mr DaSilva was proficient with the accepted industry standard sequence for laying deck. The sequence requires that the following steps are followed when laying the deck (as detailed at paragraph 17 of the Statement of Agreed Facts located at tab 1 of the Agreed Tender Bundle): (a) lay all bearing timbers; then (b) lay all joisting timbers; then (c) lay formwork boards, and place those boards in such an order to minimise exposed leading edges; and if necessary (d) patch or cover any voids left for columns and mark the "danger penetration below". 19. Mr Arbildo was on the Site each day and provided supervision to Mr DaSilva, including on the day of the incident. 20. On the day of the Incident, instructions were provided by Mr Arbildo to Mr DaSilva that he should lay the deck. He was told he would work with another worker who would clean the boards and pass them to him after Mr DaSilva had laid the timbers. Mr DaSilva was highly experienced in conducting formwork and had performed the same task numerous times in the past. On the day of the Incident there was nothing unusual in the way that the deck was to be laid. There was no reason or expectation for the works to be undertaken in a rush. 21. After the incident, I inspected the Site and it appeared that the proper sequence of laying all the timbers, joists first before laying the boards had not been strictly followed.'
My findings about the offender's level of culpability are based on the following: 1. The risk here was the risk of falling a distance of about 3 metres from the edge of a partially constructed deck. Unfortunately, it came home, and Mr DaSilva lost his life; 2. The nature of the risk was foreseeable. The measures that could have been taken to control or eliminate the risk were not difficult or expensive, and as such the offence is objectively more serious. The risk of falling from heights on building and construction sites are notorious. It is common sense that people working at heights are at risk of falling down unless there is something that intervenes to prevent that occurring. It is a feature of many decisions of this Court in this jurisdiction and in the Industrial Court of NSW; 3. The risk was also obvious, glaringly so. There were no guard rails or edge protection, and the work was being performed at height. It seems impossible to me that even a perfunctory inspection and risk assessment would not have revealed this risk; 4. To my mind Mr Arrilucea, in his affidavit, seeks to pass the blame to others. Firstly, he seeks to blame the deceased for not following the industry standard sequence of events. He seems to have placed reliance on the fact that he thought Mr DaSilva was experienced enough to not proceed with the task contrary to industry sequencing. The tenor of his evidence is that if Mr DaSilva had complied with the appropriate sequence, the incident would not have happened; 5. Then it appears to me that he tries to inculpate the defendant's supervisor, Mr Arbildo, on the basis that had he been properly supervising Mr DaSilva, the risk would have been identified and steps taken to minimise or eliminate it. At paragraph 34-36 of his affidavit he states as follows: '34. Throughout the day, Mr Arbildo supervised the activities taking place on the Site and if there were any concerns with respect to work health and safety, it was promptly identified by, or reported to, Mr Arbildo. 35. I would also walk around the site when I was at the Site and speak to workers about how the job was progressing. I would observe how the work was being undertaken and ensure that the safe work processes were being followed. This was so that I could identify any additional work health and safety issues and take immediate action if required. 36. On the day of the incident, while the usual supervision was in place, Mr DaSilva was not directly being supervised at the time that he fell.' 1. This to my mind is an attempt to pass the duty of inspection and supervision on to Mr Arbildo, and suggest that it was he who failed to identify the risk. These duties are non-delegable, and his approach shows a cavalier attitude to the risks to which his workers were exposed; 2. The risks were not identified by the defendant's employees for reasons that are unexplained. The risk may have been created by the form workers, but it is incumbent that the person in control of the business, here the defendant, makes appropriate risk assessments, and not simply rely on the experience of the workers, in particular Mr DaSilva. 3. The means to control the risks were cheap and not difficult to implement, as is evidenced in the relevant publications to which the defendant had access. The measures available to the defendant to eliminate the risks were as well known as the risk itself. However, at paragraphs 52-54 of the Affidavit of Mr Arrilucea, the defendant again seeks to, in part, excuse the defendant's breach of duty by complaining as to guidance material which was available. He complains that the Code of Practice and SafeWork Guidelines are 'limited' and contain 'an absence of detail and explanation'. I reject that submission, having regard to the documents contained in the tender bundle as follows; 1. SafeWork Australia - General Guide to Formwork and Falsework July 2014 2. SafeWork Australia - Formwork and Falsework Information Sheet July 2014 3. SafeWork Australia - Guide to Formwork July 2014 4. WorkCover NSW - Formwork, Code of Practice 1998 5. SafeWork NSW- Code of Practice - Managing the Risk of Falls at Workplaces 6. Work Health and Safety Regulation 2011, clauses 78 and 79. 1. The guidelines are in plain English and are easy to understand. They are comprehensive and provide details and diagrams. 2. The steps to which Mr Arrilucea deposes in paragraphs 44-55 of his affidavit as steps taken after the incident do go some way to create a better situation to provide better protection to workers. However, I note the safety officer that the defendant appointed into that role was previously employed by the defendant as a labourer at the time of the incident, and was only appointed into the safety role about 9 months ago. It has been submitted that he has 'done some courses' but there is no evidence before me as to what those courses are. 3. I note that revision of the defendant's SWMSs occurred on October 2016, November 2016 and January 2020, the last being with the assistance of a consultant. The documents are comprehensive and address the appropriate issues. 4. The consequence of the defendant's actions exposed workers to the risk of serious injury or death. The death of Mr DaSilva evidences as such, and the loss and devastation his passing has caused his family, and in particular his son who was midway through his HSC examinations, is enormous. 5. These factors point to an objectively serious offence.

[16]

DETERRENCE

In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the CSP Act. The approach to be adopted is set out in Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 (2000) 49 NSWLR 610 at 644 para [74]: 'Both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be some exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 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.'
The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 ('Bulga') reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule: 'It follows that both aspects of deterrence [specific and general] 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) (Inspector Page) v. Walco Hoist Rentals Pty Ltd (No. 2) [2000] NSWIRComm 39 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. …' 'Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence; see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendant to re-offend.
The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors.
In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]-[242]: 'There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald's) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316.'
The issue of general deterrence is important, and must be approached in the context of the industry in which the defendant is engaged, as the types of duties and the broader hazards and risks associated with the industry are significant.
In Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 (2000) 49 NSWLR 610 at [74], a Full Bench of the Industrial Relations Commission in Court Session (as it then was) in relation to contraventions of the Occupational Health & Safety Act 2000 (NSW) said of deterrence: 'Both 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, Page v Walco Hoist Rentals Pty Ltd (No 2) [200] NSWIRComm 39 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.'
In R v Irvine; R v Dynamic Industries Pty Limited; and R v Cini [2009] VSCA 239 at [52], Nettle JA (as he then was) said of general deterrence in the context of work health and safety prosecutions: 'Workplace safety requires employers to take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is therefore a significant factor when safety obligations are breached.'
The instant offence is one in respect of which general deterrence assumes particular prominence in the sentencing exercise. Its occurrence is widespread in the construction industry as a result of frequent poor management of what is an inevitable risk in that environment. In Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685, Russell SC DCJ held as follows: '[1] This is yet another case involving a fall from height resulting in serious injury. In previous sentencing judgments this court has remarked upon the high number of such cases. It is almost an epidemic. The prosecutor tendered statistics showing that in the three years between 1 July 2016 and 30 June 2019 there were 1,414 falls related incidents reported to Safework NSW, an average of nine a week. In that period there were 22 deaths. In many of the cases which have come before this court the fall from height leaves a worker, often a young or inexperienced worker, with a traumatic brain injury - Safework NSW v Emu Group Pty Limited [2019] NSWDC 537 at [63-64] … [2] Part of the sentencing process, and one of the objects of sentencing, is to prevent crime by deterring the offender and other persons from committing similar offences - s 3A(b) Crimes (Sentencing Procedure) Act 1999. The District Court publishes on Caselaw each and every sentencing judgment under the Act. Thus the industrial community is informed of the significant penalties imposed for offences under the Work Health and Safety Act 2011 (NSW) (the Act), which in theory should have a deterrent effect on persons other than the offender. Further, additional purposes of sentencing include to denounce the conduct of the offender, and to recognise the harm done to the victim of the crime and the community - s 3A(f) and (g) Crimes (Sentencing Procedure) Act 1999. [3] The statistics tendered in this case show that there has been no real decline in falls related incidents over the last three years. Clearly the message sent by the level of penalties being imposed is not getting through to the industrial community and such penalties are not achieving the aim of general deterrence. [4] The sentence in this case will be imposed having regard to the level of sentences set out in previous judgments of this court for similar offences.
However, the time is rapidly approaching when the courts may have to consider whether the penalties imposed for such offences should be increased above the current levels.'
However, I am of the mind that the issue of specific deterrence is also significant in this matter. The defendant concedes that it did not conduct a risk assessment of the formwork services to be performed. They had a SWMS that addressed the risks from working at heights generally at that site, but not in regard to the performance of formwork. Presumably a risk assessment would have revealed that the following steps could have been taken; 1. To install the formwork deck using the accepted industry standard safe work sequence; and 2. The installation by the principle contractor of perimeter scaffolding to provide fall protection to the upper decks, including the Level 2, formwork deck, whilst the formwork was being erected.
It was submitted on behalf of the defendant that there is no evidence that Mr DaSilva, who was an experienced formwork carpenter who had previously undertaken this fundamental task of erecting of formwork, would not have been aware of the risk from falling from the partially constructed formwork deck whilst undertaking the construction of the formwork, whilst working at heights. It was further submitted that in light of those matters, the failure to undertake a general risk assessment of all the formwork services to be performed at the construction site by the defendant, was only marginally causally connected to the exposure of Mr DaSilva to the risk. This, it is submitted, would significantly reduce the objective seriousness of the risk.
The defendant further concedes that the failure was to ensure that there was adequate supervision of Mr DaSilva whilst he was doing the work. The defendant failed to ensure that Mr DaSilva was performing the task in accordance with the accepted industry sequence.
The defendant further submits that the guidance material is limited and does not go far enough to adequately address guidance.
I completely reject those submissions. It unfortunately suggests to me that this is fits within the matters that the defendant asks me to accept to minimise its culpability. The case presented by the defendant smacks of a deliberate attempts to blame someone else, and that because others were at fault, the defendant's breach of duty is not as egregious as others, and in those circumstances, the breach is one that does not fall within the mid or high range of seriousness.
The defendant firstly seems to me to be attempting to blame the victim, Mr DaSilva, because he should have known better as an experienced formworker and should have followed accepted industry sequence. If that not be the case, the defendant seeks to blame the supervisor, Mr Arbildo for not supervising Mr DaSilva closely enough, or alternatively blame KNT the head contractor for failing to provide any or any adequate fall protection. He places blame on the guidance material, that it was inadequate and out-dated.
In attempting to pass at least some of the blame to others does not to my mind sound like a defendant that is unlikely to re-offend. It is hard to envisage that it's prospects of rehabilitation are good, in circumstances where it fails to accept the seriousness of the breach of duty. Mr DaSilva died of his injuries, and the risk that he was exposed to, and that other workers were exposed to, was something that could have been virtually eliminated, and at the very least, minimised. A proper inspection and an appropriate risk assessment would have clearly identified the risks, and were easy and inexpensive measures that the defendant could and should have taken to eliminate or at least minimise the risk.
As the defendant remains in the business and is continuing to contract to do similar work, in my view the defendant needs to be deterred from this course of conduct by a significant fine. I am of the view that the offence falls within the high range of objective seriousness.

At a glance

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Judgment (21 paragraphs)

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Legislation Cited (3)

Cases Cited (16)

Cited By (1)