Co-Wyn Building Contractors Pty Ltd (the offender) has pleaded guilty to an offence that being a person who had a health and safety duty pursuant to section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Dylan Smith to a risk of death or serious injury contrary to section 32 of the Act.
The maximum penalty for the offence is a fine of $1.5 million.
[2]
Facts
The parties presented an Agreed Statement of Facts that can be summarised as follows.
The offender operates a business conducting commercial construction work. In 2015 it was the principal contractor at St Patricks College Strathfield (the site) for the construction of a multi-level arts facility building.
Dylan Smith was employed by the Master Builders Association as a second year apprentice carpenter. He commenced that employment on 6 May 2015 and was immediately placed with the offender. He was supervised at the site by Adam Johnson, the site manager and worked with Alex Carveth, a licenced carpenter.
On 30 June 2015 roof trusses were being erected at the site. The bottom chord of the trusses was approximately 3065 mm above the concrete floor.
Mr Smith and Mr Carveth under the supervision of Mr Johnson were tasked with installing a service walkway under the point of the apex in the roof line. The task required them to lay boards in the centre of the roof trusses to be used by workers accessing the roof space after construction was complete.
Mr Smith and Mr Carveth used a scissor lift to raise the boards to a height just under the bottom chord and then to place the boards on the bottom chord. The boards were to be laid end to end and nailed down.
Mr Johnson was present at the start of the work and checked on Mr Smith and Mr Carveth from time to time.
Mr Carveth had to leave the site at about 1.15pm and Mr Johnson joined Mr Smith from about 1.00pm.
At about 1.55pm Mr Johnson told Mr Smith that he needed to go to his office to order materials. He told Mr Smith to go to the container on the ground and to get a string line and to meet him back in the roof truss in a few minutes.
Mr Smith was found laying on the concrete floor at around 2.00pm, underneath the fixed platform that he was installing.
In order to exit the roof truss the workers were required to walk on the bottom chords and bracing whilst holding the top chords with their hands, to the point where they could access the scaffolding installed along the side of the building, and then use the stairs to the ground level.
An ambulance was called and Mr Smith was taken to Westmead Hospital. He suffered serious head injuries and underwent sugery. He was placed in an induced coma. He was later taken off life support and died on 5 July 2015.
The offender did not have a Safe Work Method Statement (SWMS) for the high risk construction work of laying the platform in the roof truss. A SWMS was required because the work involved the risk of a fall of more than 2 m: clause 299(1) Work Health and Safety Regulation 2011 (the Regulations).
The offender had a SWMS for the work at the site dated 5 December 2014, but it had not been shown to Mr Smith or signed by him. The December SWMS required fall arrest systems to be used and required only competent workers to work in roof trusses.
A 'competent person' is defined in the Managing Risks of Falls at Workplaces Code of Practice 2011 (the Code of Practice) as a person who has acquired through training, qualification or experience the knowledge and skills to carry out a task. The SWMS did not contain a definition of 'competent worker'.
Mr Smith had completed a Certificate II in Construction Pathways and had commenced a Certificate III in carpentry in 2015, being a 3 year course. He had worked for 1 year as an apprentice carpenter for a shop fitting business. He was not a competent person within the meaning of the Code of Practice. Mr Smith had completed a site induction on 6 May 2015 and signed the form.
On 30 June 2015 the offender completed an Internal Investigation Report form that identified the cause of the incident as lack of supervision, inexperience and working at heights.
On 1 July 2015 Inspector Murray of SafeWork issued Improvement Notices to the offender for the lack of an SWMS for working at height and for inadequate edge protection on the scaffolding stairs at the edge of the building. Both Improvement Notices were complied with by 3 July 2015.
[3]
The Offender's Case on Sentence
The offender relied on an affidavit of Marc Gerard Cohen, a sole director of the offender, sworn 19 March 2018. Mr Cohen was present in Court and cross-examined. His evidence can be summarised as follows.
Mr Cohen has been the General Manager of the offender since 2009. The offender is a family owned and operated company that was established in 1954. It has 11 directors of which 9 are family members.
The offender carries out commercial construction work. It has a number of major education providers as clients, including the Catholic Education Office who owned the site where the incident took place.
The offender has attained ISO 9001 certification for Quality Management and Environmental Management. It holds AS/NZS certification for Occupational Work Health and Safety Management. It is a member of the Green Council of Australia and promotes green technologies into building design and construction.
The offender currently has 17 permanent full-time employees, 5 permanent part-time employees and 3 non-working directors. It engages apprentices through the MBA. The offender has been a member of the MBA since 1960. It has received a number of MBA Excellence Awards in the Private School, Hospitality and Public Building categories, including in the past 5 consecutive years.
For over 58 years the offender has trained 40 MBA apprentices. In 2004, 2005 and 2006 the offender employed the MBA apprentice of the year. Mr Johnson received that award in 2004. Since 2000, the offender has acted as the training employer for 22 MBA apprentices. During this period 10 of those apprentices obtained trade qualifications and 5 of them remain employed with the offender.
Mr Smith came to the offender as an apprentice that was highly recommended by the MBA. He commenced work at the site on 6 May 2015, under the supervision of Mr Johnson. Mr Smith was highly regarded as a worker and was diligent and conscientious about all aspects of his apprenticeship.
The roof trusses installed at the site were prefabricated and delivered to site, together with the materials required to install and brace the roof trusses on about 23 June 2015. They were installed with the use of a crane and they were braced by employees of Lime Building under the supervision of Mr Johnson. The workers used EWPs to conduct the bracing work.
Mr Smith was inducted onto the site on 6 May 2015. He signed a record of that induction. The standard training included material from the SWMS about working at heights as well as Mr Smith's safety obligations and expected behaviour.
The floor boards for the service walkway were put in place by Mr Smith and Mr Carveth with the use of an EWP. That was completed by about 1.30pm. The floor boards were then being straightened in the period of 1.30pm to about 1.55pm.
The offender built a full-scale replica of the roof truss to allow the expert to inspect it, because the building had been completed and it could no longer be easily observed.
Prior to the incident, the offender had an extensive Work Health and Saftey Management System (WHS System). It was first published in August 2011 and has been refined on a number of occasions since. The third version dated 4 February 2013 was in force at 30 June 2015.
The WHS System included the requirement to establish site specific safety plans and to enforce them with appropriate supervision and regular inspections. There was a site specific safety plan in force for the site at the time of the incident. The installation of the roof trusses had been conducted in accordance with that plan.
Following the incident the offender has strengthened its commitment to safety. All workers are required to read and sign any SWMS for high risk work. All apprentices and trainees are continually supervised while performing "Work at Heights". Apprentices are required to complete a working at heights course before they are engaged. Managers have been required to complete a 'Super Safe' course provided by an external provider. The offender has employed a dedicated WHS Officer to oversee its obligations at a cost of $93,600 per annum. The total costs are estimated at $143,000 per annum.
Mr Cohen offered an unreserved apology to Mr Smith's family and expressed remorse on the part of the offender. The directors of the offender have accepted responsibility for the failings that led to Mr Smith being exposed to the risk.
The offender attempted to assist Mr Smith's family after the incident. It provided counselling to its workers.
The offender makes a number of charitable contributions through donations and by completing building work at no cost. The offender also sponsors a number of sporting organisations.
In cross-examination Mr Cohen did not know if Mr Smith was wearing gloves at the time of the incident. He had been told that Mr Smith was not wearing gloves. Mr Smith was higly regarded as an apprentice and had no history of 'skylarking'. He had been reminded on 1 occasion to wear his hard hat. Mr Cohen accepted that the position of the floor boards in the photographs indicted that the job of laying them had not been finished, and this was inconsistent with what he had been told.
The offender also relied on 2 reports of Dr Andrew McIntosh dated 21 February 2018 and 16 March 2018. Dr McIntosh's expertise is in biomechanics and ergonomics. In his PhD he conducted experiments on cadavers to assess the extent of head injury delivered in controlled conditions. He has subsequently been asked to provide opinions about the extent of head injury expected from various activities.
Dr McIntosh was present at the sentence hearing and was cross-examined.
Dr McIntosh's opinion is that the extent of the head injuries suffered by Mr Smith and the lack of injury to other parts of his body indicates that he did not fall uninterrupted from the height of the bottom chord to the ground a distance of 3065mm, for which he would be travelling at a velocity of 7.5m/second. Dr McIntosh opines that Mr Smith's injuries were more consistent with a lower velocity, of about 6m/second that would involve a fall of about 1800 mm. This lower estimate was based on his observation and recording of the injuries conducted in his experiments during the course of his PhD.
Dr McIntosh accepted that he did not have access to information about the extent of the external head injury to assess the point of impact, of any superficial or other injury to his body or any damage to his clothing or equipment to assess whether Mr Smith made contact with the truss system during the fall.
The dimensions of the gaps in the roof truss in the vicinity of Mr Smith's fall were such that it was unlikely that a person of Mr Smith's height and build could have fallen through the aperture without making contact with the roof truss.
Based on the evidence contained in the autopsy report, indicating a lack of superficial injury to Mr Smith's hands or body, Dr McIntosh opined that Mr Smith was hanging from the bottom chord by his hands, before his fall to the ground and that such a position was more probably than not deliberately adopted.
Dr McIntosh accepted in cross-examination that his PhD experiments were limited by the use of cadavers for a number of reasons, including that the blood system was not pressurised at the time of injury and there could be no assessment of swelling, loss of consciousness or bleeding. He accepted that it was possible that Mr Smith could have fallen from the higher point and sustained only the injuries that he did.
Dr McIntosh accepted in cross-examination that he had relied on the content of the autopsy report and that the information in it was limited. He also accepted that Mr Smith could have been held up by his tool belt.
The offender seeks to submit, based on Dr McIntosh's evidence, that Mr Smith's fall was broken in some way in between the level of the roof truss and the ground and that the roof truss had provided some form of fall protection, if he had been adequately trained or supervised.
That much of Dr McIntosh's evidence can be accepted.
As to the balance of Dr McIntosh's evidence, had it have been in contest or in the event that I may have mischaracterised the offender's submissions, I would not accept it for the following reasons.
The evidence rose no higher than observational evidence. The results of that type of analysis can be hard to replicate or to reproduce. The results of the experiments to which Dr McIntosh made comparison to were limited in a number of ways that were not set out in the report. Dr McIntosh expressed the velocity analysis in terms that he was absolutely confident it was right, before accepting in cross-examination that it was possible that Mr Smith's injuries may have been caused by a fall from 3065mm and that individual characteristics of the deceased may account for the anomaly. Dr McIntosh did not give sufficient weight to the information that was missing from the analysis. He assumed the lack of evidence excluded the possibility of contact between Mr Smith's body and the roof truss. Dr McIntosh came across as very defensive in the witness box. This caused me some concern that he was not approaching the exercise with an open mind, or with the candour required of an expert witness.
Finally, the scenario that Dr McIntosh accepted was one that had been suggested to him in the letter of instruction without any proper evidentiary basis. The delivery of post event information to witnesses, even experts, is highly suggestive and may lead to incorporation into the witness' testimony. To be fair this was not put to Dr McIntosh in cross-examination. In fact the evidence on this point went entirely the other way. Mr Cohen gave evidence in cross-examination that Mr Smith was a good worker, who was well liked and had no history of 'skylarking' or unsafe behaviour and this of itself would have been enough for me to reject the ultimate conclusion of Dr McIntosh.
[4]
Consideration
I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.
[5]
Objective Seriousness
The risk of falling from height was obvious. It was a risk of death or serious injury. The failure to prevent falls by taking adequate precautions is a notorious and serious risk on building sites.
The admitted failures that were causative of Mr Smith's exposure to the risk were the provision of a SWMS that was required by the Regulations, the provision of proper training and the provision of adequate training. Each of these precautions was well known in the industry, readily available and simple to implement with minimal cost to the offender.
The lack of supervision was for a short time of about 5 minutes.
The offender did not have in place a SWMS for the work that Mr Smith was doing that was high risk construction work.
The death of Mr Smith was tragic. He was 19 years of age and vulnerable by reason of his lack of experience. His death has had profound effects on his family.
The offence is in the mid-range of objective seriousness.
[6]
Deterrence
The penalty imposed in relation to this offence must provide for general deterrence. Employers must 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 a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
There is also a need for specific deterrence because the offender continues to operate in an industry that presents significant risks to the health and safety of its employees. The need for specific deterrence is reduced. Prior to the incident the offender had in place significant systems to provide for the health and safety of persons engaged on its sites.
Aggravating factors
The injury harm and loss caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. The Victim Impact Statements were not objected to or called into question and in my view it is proper to take it into account in consideration of the establishment of the aggravating factor: R v Tuala [2015] NSWCCA 8. Mr Smith's father now suffers from crippling depression and is unable to work. He continues to be treated with counselling and medication. His mother is now supporting the family as well as caring for her husband. The harm caused to the family is evidence of harm to the community. I am satisfied beyond reasonable doubt that the injury harm and loss caused by the offence was substantial.
Mitigating factors
The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has been in operation since 1954 in an industry that is hazardous to its employees without prior incident.
The offenders has good prospects of rehabilitation : section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken considerable steps to improve its safety systems since the incident and I am satisfied that it has demonstrated good prospects of rehabilitation.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse through the affidavit Mr Cohen. I am satisfied on the balance of probabilities that the offender has accepted responsibility for its actions and demonstrated genuine remorse and contrition.
The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The primary consideration in determining where in the range a particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The plea entered was a late one. It was first indicated a few days before the date that the matter was listed for trial. The appropriate discount is 10%.
The offender co-operated with the Safe Work investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
[7]
Penalty
The offender is convicted.
The Victim Impact Statements were read aloud by Mr Smith's father. Each statement was thoughtfully prepared and conveyed the love and respect held for him as well as the pain and loss suffered by each the family members. The prosecutor has applied to have the content of the statements considered in determining the appropriate punishment for the offence on the basis that the harm caused to the family by the deceased's family is an aspect of harm done to the community: section 28(4) Crimes (Sentencing Procedure) Act 1999. I find that it is appropriate to do so.
The appropriate fine is one of $450,000 that will be discounted by 10% to take into account the plea of guilty.
I impose a fine of $405,000.
I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
I order that the offender pay the prosecutors costs as agreed or assessed.
[8]
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Decision last updated: 26 March 2018