Action Concreting and Constructions Pty Ltd (Action or the offender) appears for sentence after it pleaded guilty on 13 February 2017 to an offence to an offence contrary to section 32 Work Health and Safety Act 2011 (the Act) of failing to comply with its health and safety duty and thereby exposing Dragan Gaica to a risk of serious injury or death.
The maximum penalty for the offence is a fine of $1.5 million.
I have previously sentenced a co-offender, Kazoo Aquasports Pty Ltd (Kazoo) in respect of the same incident. It should be noted that the agreed facts were significantly different in each matter. I have proceeded to sentence Action on the basis of the agreed facts in this matter and on the basis of the prosecutor's concession which I will come to later.
[2]
The facts
The parties presented an Agreed Statement of Facts [1] that can be summarised as follows.
Action entered into an oral contract with Kazoo to carry out steel fixing and formwork on the construction of a multi-storey residential building at 26A Hudson Avenue, Clareville (the site). Kazoo was the principal contractor at the site and day to day supervision of the site was undertaken by Thomas Luedecke, a director of Kazoo.
Action subcontracted with Action Concreting Labour Pty Ltd (ACL) to provide the labour to undertake the work at the site. ACL subcontracted with Mr Gaica. Mr Gaica's role was to perform a range of tasks which included formwork. He had worked with ACL for approximately four years and was in the process of becoming an employee.
The site was situated on a battle-axe block which sloped towards a waterfront area. At the time of the incident, Mr Gaica had been working at the site for about a month. The work being undertaken was installation of the formwork for the first floor. The concrete was due to be poured about 2 days later.
Scaffolding had been erected to some areas of the site but not along the front edge of the building along the waterfront. An extension platform had been erected outside the perimeter of the first floor. The extension platform had no handrails, guardrails or other form of edge protection.
Shortly before 11:20am on 11 October 2014 Mr Gaica was working with Mr Sturden close to the edge of the first floor. Mr Gaica was using a nail gun while Mr Sturden was holding timber along a stringline which had been placed there earlier.
Immediately before the incident Mr Gaica was nailing down edgeboards. Mr Gaica stepped over the stringline to gain a better position and placed his weight onto a timber beam that protruded past the edge of the extension on the first floor. This was so he could nail another piece of timber onto the structure so as to form the edge board.
The stringline had been laid out by Mr Luedecke so that the workers would use it as a guide to position the edge boards. No scaffolding, fall-prevention measures such as hand or guard railings, safety balustrades or other form of edge protection was in place on the first floor extension platform.
The timber beam Mr Gaica stepped onto was, until the day before on 10 October 2014, supported by an Acro Prop. After a frame supporting the first floor had been moved under the direction of Mr Luedecke, the beam was no longer supported and could not hold his weight. The beam tipped and gave way causing Mr Gaica to fall.
Kazoo had in place a safe work method statement (SWMS) relating to working at heights in general terms. The SWMS was not site-specific and had been developed in relation to previous jobs carried out on other sites.
The SWMS addressed the risk of falling under the activity heading "Working at Height" [2] and identified scaffolding as the applicable control measure for this activity. Site-specific risks and the measures to eliminate them had not been explained to the workers on the site. The SWMS did not provide any guidance on the steps required to eliminate or minimise the risk of falling over the edge of the first floor. No system existed to ensure that the SWMS was followed when undertaking the work. No comprehensive training had been provided to the workers at the site in relation to the risks of working at height and how to reduce or minimise the risk of falling from a height.
The work was not conducted in accordance with the SWMS.
Kazoo had responsibility to provide adequate edge protection such as guard railing where the risk of falling was greater than 1.8m; as was the case at the time of the incident.
Action was aware of the risk of lack of edge protection. It did not prevent work from being carried out until this was addressed. Action had a general SWMS for the site which identified the risk of falling when working at heights whilst performing general construction activities. The SWMS identified scaffolding as being the appropriate control measure.
Neither Action or Kazoo ensured compliance with the fall protection measures identified in their respective SWMS.
[3]
Action's case on sentence
Action relied on an affidavit of Mario Rasso sworn 18 July 2017 and an affidavit of Ottorino Rasso sworn 18 July 2017. Neither deponent was required for cross-examination. The salient points of the evidence can be summarised as follows.
Action was formed in 1999 by Mario and Ottorino Rasso. Both have considerable experience working in the building industry as concreters.
Mario Rasso holds a number of qualifications from Work Cover which allow him to undertake scaffolding, formwork, concreting and to use explosive tools.
Ottorino Rasso is also a qualified concreter.
At the time of the incident Action had about four employees or contractors working for it. Mr Gaica was paid by Action Labour. Mario Rasso had known Mr Gaica for some years. In his estimation, Mr Gaica had over 20 years' experience dealing with concreting.
The majority of Mario Rasso's and Action's experience is working jobs at ground level laying slabs, driveways and other ground level concreting work.
The work at the site was based on an oral contract between the Rassos and Mr Luedecke, on a "do and charge" basis. The Rassos attended the site on a number of occasions and made arrangements for Mr Gaica to carry out work at the site.
Mario Rasso was not present at the time of the accident and notes that he was told that Mr Gaica had fallen, and the reason for the fall was due to the removal of some of the support on the formwork he was working on, being removed.
Since the incident, Action no longer carries out any work at height. It works exclusively at ground level and has only one direct employee and will occasionally use one other contractor or sub-contract to other companies to assist on jobs. The business is generally smaller in scale compared to the time of the incident.
Both of the deponents expressed remorse for the incident and the injuries suffered by Mr Gaica, the effect on him and his family and the wide ranging effect on the company and its employees. It was the first major incident that Action had experienced. It has led to ensuring that safety on jobs carried out by Action is a major concern.
Action is involved in the local community in the Narraweena area. It sponsors a junior rugby league team, a girls under 16's football (soccer) team and a men's over 35's football (soccer) team. Action also provides for students from St Paul's college to do work experience with the company.
Action has scaled back its size since the incident. The profit and loss statement ending June 2016 shows an after tax profit of approximately $160,000.
[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 of the offence
The risk posed to the safety of the formworkers by the absence of any edge protection to the first floor extension platform was obvious. It was a risk that was referred to in the SWMS relied on by both Kazoo and Action. The offender failed to ensure that the work was conducted in accordance with the SWMSs.
The likelihood of the risk occurring was low. The first floor extension platform was only part of the building. Most of the side of the first floor were adequately protected. The incident occurred as a result of the removal of the Acro Prop and Mr Gaica's decision to step outside the edgeboard to nail a piece of timber to it. The action by Mr Gaica involved a considerable risk to his own safety.
The steps required to eliminate the risks were simple and readily available. They included Action directing its workers not to undertake the work if the edge was unprotected and erecting a handrail from the timber that was readily available at the site.
The gravity of the risk was significant and it included a risk of death. There was a 2-3m drop to concrete stairs below.
Mr Gaica was discharged from hospital on 14 October 2014. He required physiotherapy and hydrotherapy for about 9 months following the incident. He has not returned to his pre-injury duties as a result of ongoing impairment.
The objective seriousness of the offence is in the low range.
[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 although it is significantly reduced. The offender continues to operate and engage workers to undertake tasks that may present a risk to their health and safety. The offender has decided not to undertake work at height and has improved its systems and attitudes to health and safety as a result of the incident.
[7]
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 agreed statement of facts does not contain any particulars of Mr Gaica's injuries. It only refers to him requiring ongoing treatment by way of physiotherapy and hydrotherapy for 8-9 months and that he had not returned to his pre-injury employment as a result of ongoing impairment. The VIS was 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 Gaica provided that he suffered a number of spinal fractures and has significant ongoing disability. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. A risk that comes home and causes serious injury is thereby more deleterious than may ordinarily be expected for the offence. I am satisfied beyond reasonable doubt that the injury harm and loss caused by the offence was substantial.
[8]
Mitigating factors
The defendant does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. Action has been operating since 1999.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. I am satisfied on the offender's evidence that the directors of have accepted responsibility for the company's failings that led to the commission of the offence and that they have expressed genuine contrition and remorse.
The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. Action is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. 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 offender indicated that a plea of guilty would be entered on the first return date. The appropriate discount is 25%.
The defendant co-operated with the investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
[9]
Other matters
The prosecutor conceded that Action was less culpable than Kazoo in all the circumstances of the case. Based on that concession the offender asks me to consider the principle of parity when imposing the appropriate penalty.
As I have previously noted the agreed facts in each case were significantly different. Each case has been presented in a way that is most favourable to each co- offender, however I am bound to sentence in the basis of the agreed facts in each case. Had the agreed facts been the same for each offender, the result may have been completely different. It is unlikely that the result in either of these cases has much value as a comparable sentence.
I am not satisfied that the difference in culpability between the co-offenders is significant.
The offender lead evidence about its capacity to pay a fine, but conceded that it had the capacity to pay a fine in the amount imposed on the co-offender.
[10]
Penalty
The offender is convicted.
I have considered the Victim Impact Statement of Mr Gaica.
The appropriate fine is one of $36,000 that will be discounted by 25% to take into account the plea of guilty.
I impose a fine of $27,000.
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 in the sum of $13,000.
[11]
Endnotes
Together with a Further Agreed Fact.
Check reference
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Decision last updated: 31 July 2017