Universal Property Group 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 Simon Yu 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.
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Facts
The parties presented an Agreed Statement of Facts that can be summarised as follows.
The offender owned the property at 185 Knox Road, Doonside at which it was conducting a business or undertaking being the construction of a residential apartment complex.
The offender had an arrangement by which Raj and Jai Constructions Pty Ltd provided the services of its subcontractor, Emelieus Costa to provide supervision at the site. The offender employed a Construction Manager, who had responsibility for overall supervision at the site as well as a Cadets Engineer who had responsibility for site inductions and site safety.
The offender contracted with Fastform Australia Pty Ltd (Fastform) to undertake the concreting work. Fastform subcontracted the formwork to Easy Formwork and Construction Pty Ltd (Easy).
Easy's work at the site involved laying a formwork deck that was to become the podium level on which the two-storey residential units would be built.
Elizabeth Anderson was employed by SDG Personnel Solutions Pty Ltd (SDP) as a surveyor. Mr Yu was employed by SDP as a surveyor's assistant.
On 16 February 2015, Ms Anderson and Mr Yu attended the site to undertake surveying work. On their arrival they reported to Mr Costa. Mr Costa told them that the northern end of the deck was complete and ready to be surveyed, but they would have to return later to survey the southern end of the deck.
Mr Costa was authorised to permit persons to access the site. Mr Yu was not told that there were any penetrations in the deck and he did not see any marks or signs to indicate the presence of penetrations.
Ms Anderson and Mr Yu commenced their work in the street adjacent to the site. During this work, Mr Costa left the site and went to lunch.
Ms Anderson and Mr Yu then commenced to survey the northern end of the podium deck. Ms Anderson had plans of the building including of the formwork deck, which she used as a reference to enable markings to be placed on the formwork relevant to future forming up of the concrete deck. Mr Yu's role was to locate a reflective target, known as a 'Gammon Reel' as directed by Ms Anderson and then to mark the formwork by hammering in a nail and marking it with spray paint.
After marking several locations, Mr Yu came across a sheet of unmarked plywood that unknown to him was covering a 970mm x 350mm penetration in the deck. The plywood was of the same appearance as that used for the deck. The penetration was necessary for the later formation of a concrete column between the ground floor and the first floor and it would have been marked on the plans.
The penetration cover extended over the location for Mr Yu's mark. He believed that the plywood was a spare piece. He removed the plywood exposing the void. Mr Yu fell 4 metres before becoming impaled on upright concrete reinforcing bars that had been installed to support the concrete column.
Mr Yu sustained a 10cm puncture to his right buttock, a fractured pelvis and 3 fractures to the left of his spine towards his lower back. He sustained significant blood loss and required a bold transfusion. Mr Yu has returned to work on restricted duties, relating to lifting or moving heavy weights.
The Safe Work Australia 'Guide to Formwork' (the Guide) was readily available information prior to the incident. The Guide identifies the use of plywood covers alone as an unsatisfactory control measure to prevent falls through penetrations because the cover may be indistinguishable from other pieces of plywood, it cannot be refitted without significant modification and plywood covers that have been unsecured may not be re-secured. The Guide recommends that plywood covers should be structurally graded, painted in a bright colour and marked with a warning, firmly secured to the concrete and designed for the potential loads may be applied to them in terms of workers, materials and plant.
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The Offender's Case on Sentence
The offender relied on an affidavit of Bhart Bhushan, the sole director of the offender, sworn 2 February 2018. Bhushan was present in Court for the sentence hearing and was not required for cross-examination. His evidence can be summarised as follows.
The offender was incorporated on 22 April 1997. Its main work involves residential housing developments.
The offender's business has increased significantly in the past 5-10 years, growing from 5-6 jobs at a time in 2008, 10-12 jobs at a time in 2013 and 35-40 jobs at a time presently. The offender now employees approximately 264 people, up from 13 in 2008 and 73 in 2013.
In 2012 the offender employed a Safety Officer. In 2013 it updated its Health and Safety Policy and in 2014 introduced a new Risk Management System. The offender employed a Work Health and Safety Co-ordinator and a Quality Safety and Environment Manager. Site Supervisors were responsible for safety on each site and they were provided with training and forums in which safety matters were raised and resolved. The offender also engaged Cadet Engineers who were responsible for site inductions and carrying out safety inspections.
The offender had a site specific safety plan for the site. Mr Costa was the site supervisor and had worked on the offender's sites since about 2011 and was very experienced. The site specific plan required that all contractors coming onto site be given a site induction.
Mr Yu was not given a site induction because Mr Costa left the site to go to lunch.
Fastform provided a Safe Work Method Statement (SWMS) for the work it was to perform on site.
The offender had a proactive approach to other matters that had arisen at the site before the incident.
After the incident the offender introduced a number of changes to its system to reduce the likelihood of similar incidents occurring in the future, including discussing the issue of penetration covers at Toolbox meetings. The offender formalised a 'Penetration Cover Procedure', and trained its workers on it at a series of Toolbox meetings across its sites.
The offender has also introduced the embedding of mesh into the pouring of concrete slabs to guard against the risk posed by penetrations for service risers.
The offender has directed its staff in safety roles to increase the supervision of work done by subcontractors to ensure that it is being done safely. As at January 2018 the offender employed 8 safety officers, who are supervised by the WHS Manager and the WHS Co-ordinator.
Since the incident the offender has introduced systems aimed at discussing WHS matters during the allocation of contracts for projects and at the time when contractors come into a project.
At the site, the offender required the documentation of site inspections undertaken and the updating of SWMS from subcontractors. The offender has required personnel to undertake a site specific induction, with a sign on register to ensure compliance.
The offender has continued to update its systems since the incident.
Mr Bhushan expressed remorse on behalf of the offender and accepted responsibility for the failures that led to the incident.
The offender has contributed to a charitable organisation.
The offender co-operated with SafeWork.
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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 through an inadequately protected penetration was obvious. It was a risk of death or serious injury. The failure to prevent falls by the adequate protection of edges or penetrations is a notorious and serious risk on building sites.
The means by which the penetration could have been properly protected were well known in the industry, simple and readily available.
The failure of the offender was to properly supervise the work of the subcontractors that installed the formwork. This failure occurred at a number of levels. First, the subcontractors SWMS referred to the guide in oblique terms. It assumed knowledge of the Guide and did not set out the required procedure for the workers who were asked to abide by the SWMS . Second, the cover was allowed to remain in place after installation without being properly marked. There were a number of the offender's employees tasked with identifying such hazards, who failed to find it and fix it.
There is a dispute between the parties as to whether the plywood cover was secured or not. The summons and the agreed facts were amended to reflect that the plea was entered on this basis. I was not asked to make a finding on this dispute.
It was submitted on behalf of the offender that the surveyors knew or ought to have known of the location of the penetration and that the fall would not have occurred if Mr Yu had not moved the plywood. I do not find those matters particularly mitigating. Whilst Ms Anderson, who was in possession of the plans may have known about the presence of the penetration, it cannot be said that Mr Yu did. The use of the plywood of the same appearance as the deck created an appearance to Mr Yu that the cover was a spare piece of plywood and did not alert him to the serious danger that was present. Mr Yu was required to move the cover to mark the appropriate location and was doing no more than what was expected of him.
The offence is in the mid-range of objective seriousness.
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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 injuries sustained by Mr Yu were serious. 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 1997.
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 Bhushan. 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 appropriate discount is 25%.
The offender co-operated with the Safe Work investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
Penalty
The offender is convicted.
The appropriate fine is one of $180,000 that will be discounted by 25% to take into account the plea of guilty.
I impose a fine of $135,000.
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.
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Decision last updated: 20 February 2018