Solicitors:
Safe Work (NSW) (Prosecutor)
Office of the General Counsel, Meriton Group (Defendant)
File Number(s): 2016/00044853
[2]
sentence
Karimbla Constructions Services (NSW) Pty Ltd (the offender) appears for sentence after it pleaded guilty to an offence contrary to section 32 Work Health and Safety Act 2011 (the Act). The offence was committed when the offender breached its health and safety duty owed pursuant to section 19(1) of the Act and thereby exposed Oteki Felemi to a risk of death or serious injury.
The maximum penalty for the offence is a fine of $1.5 million.
[3]
Facts
The parties presented an Agreed Statement of Facts that can be summarised as follows.
The offender was the principal contractor for construction work at 19-33 Kent Road Mascot (the site). A multi-storey mixed use residential building was under construction.
Mr Felemi was employed by Freyssinet Australia Pty Ltd (Freyssinet) as a concrete stressor. Freyssinet had contracted with Karimbla to undertake post stressing at the site.
On 10 February 2015 Mr Felemi had finished work for the day on the sixth floor of the site. He was walking down an internal concrete stairway (the stairs) from the ground level to the underground car park levels to access a locker room that was being used by the Freyssinet employees, with 3 workmates. The stairs had a temporary timber handrail installed of a post and rail design that consisted only of a top rail. In other words, it provided no impediment to a person failing under the top rail.
Mr Felemi lost his footing and fell under the top rail, falling about 3m onto a concrete landing below. There was no intermediate rail, but a toeboard was in place along to the edge of the stairs. The stairs were permanent and a completed part of the building. They were clean and clear of any debris.
Mr Felemi suffered serious injuries, including a severe head injury, spinal injuries and chest and facial fractures. He was taken to Royal Prince Alfred Hospital (RPAH) where he remained for 7 weeks, 3 of which were spent in the Intensive Care Unit (ICU). Mr Felemi is still in rehabilitation as an outpatient at Westmead Hospital and has not returned to work.
At induction each worker on the site was trained on how to identify risks on the site, even if the risk was not associated with that workers task. The workers were trained on the procedure to be followed if a risk was identified.
Freyssinet conducted inspections and notified the offender of risks identified. Those inspections were documented and provided to the offender.
The offender fixed each reported hazard immediately or arranged a sub-contractor to do so.
The offender had not been notified of the hazard presented by the insufficiency of the handrail to the stairs, or of a risk in the area where Mr Felemi fell.
The Australian Standard AS 1657-2013 required the installation of an intermediate rail or the fixing of mesh, to prevent a person falling underneath the top rail.
On the day of the incident the offender installed an intermediate rail. On 11 February 2015 the offender installed steel wire mesh over the top rail and the intermediate rail at the direction of SafeWork NSW.
It was a further agreed fact that the stairs were used daily by employees and the employees of contractors on site.
[4]
The Offender's Case on Sentence
The offender relied on an affidavit of James Sylvester Sykes, sworn 30 January 2017. Mr Sykes was present in Court for the sentence hearing but not required for cross-examination. The affidavit can be summarised as follows.
Mr Sykes is the Group Safety Manager of the Meriton Group of companies (the group) to which the offender belongs. It was incorporated in 2011.
Mr Sykes has been employed in the field of industrial safety for 15 years. He was first employed by the group in 2009 and was promoted 6 months later to his present position. That position includes responsibility of oversight of safety issues on all of the offender's sites.
Mr Sykes was appointed the Work Health Safety and Environment Manager for the site.
Mr Sykes was present on site when Mr Felemi fell. At the time, he was conducting a "safety walk" with one of the offender's safety officers.
He directed that the stairs be cordoned off and liaised with the SafeWork inspectors and union representatives that attended the site.
At the time of the incident, the offender had adopted a Safety Management Plan for the site. It had conducted a project risk assessment for the site. There were 3 safety officers and 3 safety labourers employed at the site to provide supervision, conduct tool box talks, facilitate safety meetings and carry out the activities identified in the Safety Management Plan.
The offender also required all contractors to submit a safety plan before commencing work on the site. Freyssinet had submitted a safety plan.
The offender had also adopted a Safe Work Method Statement (SWMS) for the construction work taking place at the site. Each contractor was also required to have a SWMS for their work.
Each worker was inducted when entering the site. That induction included checking the worker's qualifications, ensuring that the worker had read the induction booklet and site rules and had undertaken a site specific induction. As part of the induction quizzes were administered to ensure that the worker understood the material delivered in the training. If the worker got an answer wrong the relevant training on that issue was repeated. The training included a direction not to enter an area without adequate edge protection and the requirement to notify a supervisor if such an area was identified so that it could be immediately rectified. A check was also performed to ensure that a worker had signed all relevant safety documents and they were asked to sign the Induction Register.
The Safety Officers completed "safety walks" on a daily basis and were required to document any areas of concern.
Freyssinet and all sub-contractors were required to have a supervisor on site to supervise its employees. The supervisor was required to provide a monthly safety report to the Safety Officers to indicate that the sub-contractors SWMS was up to date and to report on safety matters. In addition the supervisor was required to submit a weekly safety checklist, carry out weekly tool box talks, to attend weekly safety meetings with the Safety Officers and Mr Sykes and to carry out weekly supervision of a task referred to in the SWMS to verify that the relevant control measures were being followed.
All contractors were also required to nominate a trained employee to be part of the Safety Committee, organised by the Safety Officers. The Safety Committee met weekly.
The Safety Officers were required to report weekly to Mr Sykes.
Mr Sykes deposed that the stairs were a completed part of the building that were being used by the Freyssinet employees on a daily basis to access lockers.
The handrail in place at the time of the incident was a temporary one. The installation of a permanent handrail was a task covered by an SWMS. Mr Sykes accepted that the temporary handrail was installed by a labourer employed by the offender and that it should have had an intermediate rail.
To avoid the situation occurring again the offender has purchased pre-formed temporary handrails to be used that have a mid rail and comply with the Standard. The cost associated with that was over $200,000.
Prior to the incident, none of the workers at the site had reported to the offender the lack of an intermediate rail on the stairs.
Mr Sykes' review of the SWMS relating to the site revealed a heavy focus on the work activity. The Safety Officers were reminded of the need to assess the whole site and the SWMSs were updated.
Mr Sykes has made enquiries of Freyssinet as to Mr Felemi's progress. Money has been raised on a number of the offender's sites to assist Mr Felemi and his family. Immediately following the incident the offender arranged for meals to be delivered to Mr Felemi's family.
Mr Sykes expressed distress that the absence of a simple control measure could have prevented serious injury to Mr Felemi.
Exhibited to the affidavit were all of the documents that I have referred to. Of particular note were the safety reports of the Freyssinet supervisor. Those documents corroborated Mr Sykes' evidence, but also identified safety concerns that were communicated to the offender by the employees of Freyssinet.
[5]
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.
[6]
Objective Seriousness
The risk of serious injury or death to a person using the stairs was obvious, but there was a handrail that did provide some fall protection. What it did not do was prevent a person falling underneath the top rail as a result of losing their footing. Clearly, the lack of an intermediate rail did not raise the concerns of workers using the stairs on a daily basis. Nevertheless the offender was on notice of the risk posed in general by inadequate edge protection.
The likelihood of the risk occurring was moderate, although in reality it occurred once in the context of extensive use of the stairs by workers at the site. The workers came into contact with the risk regularly, probably in the order of 3 or 4 times per day when they accessed their lockers at the start of the day, at lunch time, at the end of the day and potentially at other times.
There were simple and inexpensive measures available to avoid the risk. The existence of them was known to the offender and within its capacity to easily adopt.
The gravity of the risk was significant and it included a risk of death.
The offender had adopted a thorough multi-layered safety system. It failed in part because none of the employees of the offender nor the employees of the sub-contractors identified the risk posed by the stairs, despite the fact that they were all trained to identify and report any risks on site. The failure of the workers to identify the risk was a circumstance relating to the offence that should properly be regarded as a circumstance of mitigation in assessing objective seriousness: R v Wilkinson (No 5) [2009] NSWSC 432 at [61].
The system also failed because the safe work practices focussed too much on the work performed on site and did not pay adequate attention to the dangers presented by the conditions of the site itself, in this limited regard.
The breach arose primarily because an employee of the offender installed an inadequate temporary handrail that did not comply with the Standard.
The objective seriousness of the offence is in the mid range.
[7]
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, however in this case it is reduced. The offender had taken extensive steps prior to the incident to comply with the requirements of its health and safety duty. After the incident, the offender took immediate steps to improve its systems. Specific deterrence remains relevant to the sentencing exercise because the offender continues to operate a business that is inherently dangerous to its employees and other persons who may be working at its sites.
[8]
Aggravating factors
The injury, emotional harm and loss caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. I am satisfied beyond reasonable doubt that Mr Felemi's injuries and the ongoing disabilities suffered by him are substantial.
[9]
Mitigating factors
The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has been in business since 2011. It carries out high risk construction work and has sub-contractors also carrying out that work at its sites on a daily basis.
The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Prior to the incident the offender had substantial systems in place to identify risks to the safety of workers involved in its operations. The system was multi-layered and involved its own employees and the sub-contractors' employees in identifying risks to safety. The offender's response to the incident was swift and it has been extremely thorough. I am satisfied on the balance of probabilities that the offender has good prospects of rehabilitation.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has accepted responsibility for its failings that led to the incident. Mr Sykes has expressed distress at the serious injury suffered by Mr Felemi. The offender has enquired as to Mr Felemi's welfare and has allowed funds to be raised for him on a number of its sites. I am satisfied on the balance of probabilities that the offender has 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 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 appropriate discount is 25%.
The offender co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
Finally, the offender's moral culpability for the offence is reduced because whilst the system it adopted failed, it took extensive steps to comply with its health and safety duty. Its departure from the standard expected of a responsible and safe person conducting a business or undertaking was not substantial.
[10]
Penalty
The offender is convicted.
I have taken into account the Victim Impact Statement of Mr Felemi. He continues to suffer pain and needs to take medication. He would like to return to work but cannot do so.
The appropriate fine is one of $180,000 that will be reduced by 25% to reflect 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 in the sum of $27,000.
[11]
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Decision last updated: 16 May 2018