SafeWork NSW v Art Civil Pty Ltd

District Court of NSW|2023-09-13|Before: Mr P

Solicitors: Department of Customer Service (for the Prosecutor) Kennedys (Australasia) Partnership (for the Defendant) File Number(s): 2022/235939

JUDGMENT

Art Civil Pty Ltd ('the defendant'), being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) ('the WHS Act') in that on 1 September 2020 at 12-14 Grosvenor Street, Neutral Bay in the State of New South Wales, failed to ensure so far as is reasonably practicable that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking, failed to comply with that duty and the failure to comply with that duty exposed workers, including Mr Gary Williams ('Mr Williams') to a risk of death or serious injury contrary to s 32 of the WHS Act.
The offence is recorded in the Summons filed on 10 August 2022.
At the time of the offence the maximum penalty was $1,766,130.00
The prosecutor tendered the Prosecutor's Sentence Tender Bundle ('PSTB') which became exhibit A and the defendant read an affidavit of Mr Ayed Haddad ('Mr Haddad') filed 6 September 2023 which became exhibit 1.

Background

The defendant's business or undertaking involved demolition and bulk excavation and held a restricted demolition licence. As at 1 September 2020 the defendant had 11 employees.
Mr Haddad is the sole director of the defendant and is responsible for the governance, management and operation of the company. He has worked in the demolition industry for approximately 26 years and his daily duties for the defendant involves site works, managing daily operations, financial control and attending to the general running of the business.
As at 1 September 2020, Mr Williams was employed by the defendant as a casual machine operator for about 10 years. The defendant also employed Mr Kodee Mita ('Mr Mita') and Mr Livai Leone ('Mr Leone') as labourers and Mr Glenn McDougall ('Mr McDougall') as a (secondary) site supervisor.

The Project

Impero Pacific Group Pty Ltd ('Impero') were the principal contactors of a construction project named "Bala" at 12-14 Grosvenor Street, Neutral Bay ('the site'), which involved the demolition of two-story residential units on the site and the construction of a new residential complex.
The defendant was engaged by Impero to undertake the demolition and civil works at the site.
As part of the scope of works, the defendant was required to demolish and remove all structures at the site. The structures being demolished at the site included wall and concrete and masonry.
The defendant started working at the site on 24 August 2020 and Mr Williams' role at the site involved operating machinery for the demolition, stockpiling and loading of debris. Mr Haddad supervised the works at the site (together with Mr McDougall) and attended the site each day.

The Excavators

The defendant and/or Mr Haddad owned a Caterpillar 320E excavator and a Doosan excavator which was used at the site. The Doosan excavator was used for demolition and the Caterpillar excavator was used for clearing and cleaning the site, and both were operated by Mr Williams at the site.

The Incident

On 1 September 2020 Mr Haddad instructed Mr Williams to demolish a structure on the site and to clean up after the demolition work was completed. Mr Williams commenced to do so using the Doosan excavator.
The Caterpillar excavator arrived at the site about 12 noon and Mr Williams commenced to use it as he considered it a better machine for the job. Immediately prior to the incident, Mr Williams was operating it to demolish a building.
At approximately 2.00 pm, Mr Williams was removing debris from a first-floor concrete slab at the site. As he was dragging debris from the edge of the slab, a large metal lintel (a type of beam that spans a window opening) fell from the slab and punctured the glass front cabin window of the excavator. The lintel then struck Mr Williams' left leg. An ambulance was called and conveyed Mr Williams to Royal North Shore Hospital.

Systems of work prior to the incident

The defendant had a Safe Work Method Statement ('SWMS') in place for the task of demolition at the site which identified risks of injury to individual and uncontrolled flying objects. The control measures for the risk included protect operator front cabin window by steel mesh to prevent uncontrolled flying object.
Mr Williams had not seen nor signed the SWMS. Neither Mr Haddad nor anyone supervising Mr Williams discussed the SWMS with Mr Williams prior to him commencing work at the site.
Prior to the incident, the Caterpillar excavator did not have a screen fitted to the front cabin window to protect the operator from flying objects, as it had been removed by a previous operator because it was causing visual obstructions. The defendant is not aware when it was removed nor held any records documenting when an inspection was last conducted on the Caterpillar excavator.
The defendant did not have any documented pre-start plant checklists for the period 1 August 2020 to 1 September 2020. Mr Williams was not provided with a checklist in relation to the excavators.

Work Health and Safety Regulation 2017 (NSW)

Clause 214 of the Work Health and Safety Regulation 2017 (NSW) ('the Regulation') requires that a person with management or control of powered mobile plant at a workplace must manage the risks to health and safety associated with things falling on the operator of the plant.
Clause 205 of the Regulation states that a person with management or control of plant at a workplace must so far as is reasonably practicable, prevent alterations to or interference with the plant that they have not authorised.

Codes of Practice

The SafeWork NSW Code of Practice ('COP') entitled "Demolition" (dated August 2019) provides practical guidance to persons conducting a business or undertaking on how to manage health and safety risks associated with demolition work.
The COP states that powered mobile plant used for demolition work, such as excavators, must be fitted with a suitable combination of operator protective devices, including falling object protective structures ('FOPS').
The COP also states that operator protective structures should be designed to the appropriate standard that eliminates or minimises the risk, so far as is reasonably practicable, of operator injury due to objects falling on or over the cabin and objects penetrating the cabin. Further, it states that windows and openings should be protected against penetrating objects by wire mesh, steel bars or by using suitable polycarbonate material.
The COP entitled "Managing the Risks of Plant in the Workplace" (dated August 2019), similarly provides that a person with management or control of powered mobile plant at a workplace must ensure, so far as is reasonably practicable, that a suitable combination of operator protective devices for the plant is provided, maintained and used.
Australian Standard, AS2601 - 2001, "The Demolition of Structures", provides that all plant used on a demolition site shall be: "(b) used and maintained as recommended by the equipment's supplier and/or manufacturer; and (c) in the case of load shifting equipment, and the like, used in the demolition process, provided with overhead protective structures … for Falling Objects Protection Systems."
The Codes of Practice and Australian Standard were readily accessible and available in the public domain prior to and at the time of the incident.
The Operator's Manual for the Caterpillar excavator provides guidance as to the guarding that is required and what protection should be used.

Systems of work after the incident

Following the incident, the defendant fitted heavy duty mesh screens to its excavators.
The defendant also engaged specialist contractors (Compliance Council) to assess its safety processes and procedures.

The Defendant's Duty

The defendant had a duty under s 19(1) of the WHS Act to ensure the health and safety of its workers, so far as reasonably practicable. The duty requires the identification of risks in the workplace, so far as is reasonably practicable. The duty requires the identification of risks in the workplace and the adoption of measures to eliminate or minimise them, so far as is reasonably practicable: Kirk v Industrial Commission of New South Wales [2010] HCA 1 at [34]. The duty is positive, non-delegable and requires duty holders to search for, detect and eliminate, so far as is reasonably practicable, risks to safety.

The Risk

The risk relevant to this offence is described in Annexure "A" to the Summons in the following terms: "The risk was the risk of workers, in particular Mr Williams, suffering serious injury or death as a result of being struck by debris or other materials whilst operating the excavator to perform demolition and/or cleaning work at the site."

Sentencing

The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the WHS Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the WHS Act.
The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
The Court is to approach a sentencing exercise on the basis of it being one of 'instinctive synthesis': Markarian v The Queen (2005) 228 CLR 357.
The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: "The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement."

Objective Seriousness of the Offence

The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120 at [27]: "…The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of offending."
Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5.
The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is non-delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) (1988) 164 CLR 465.
The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 ('Capral Aluminium') at [81].
An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117.
Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].
The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). His Honour Justice Basten, under the heading 'Assessment of Risk' said at [34]: "The sentencing judge commenced his consideration with the proposition that '[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.' However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors."
His Honour further observed at [42]: "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, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known."
I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.
The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).
Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include: 1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Nash v Silver City [34]; 2. The availability of steps to eliminate or minimise the risk: Nash v Silver City [34]; 3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City [34] and [53]; 4. Whether the risk was known or ought reasonably have been known to or identified by the offender; 5. Whether the risk was an obvious or clear one; and 6. The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).
However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken."
The following matters are relevant to determining the culpability of the defendant: 1. The defendant failed to take the following reasonably practicable measures to eliminate or minimise the risk: 1. Verifying that a FOPS was fitted on the excavator, such as a demolition screen or steel mesh screen; and/or 2. Prohibiting workers from operating the excavator whilst a FOPS (such as a demolition screen or steel mesh screen) was not fitted to the excavator; and/or 3. Implementing and enforcing the SWMS for the task of demolition at the site, including the requirement to protect the front cabin window of the excavator with steel mesh; and/or 4. Implementing and enforcing the use of a daily checklist and/or pre-start plant checklist for the excavator that included a check for the presence of a FOPS; and/or 5. Providing adequate training, information and instruction to workers in relation to the safe work procedures for the task of demolition and the use of a FOPS and, in particular: 1. providing the SWMS for demolition to Mr Williams; 2. instructing Mr Williams that the excavator must not be operated without a FOPS in place; and/or 1. Preventing alterations to, or interference with, the excavator that were not authorised (namely the removal of steel mesh on the front). 1. There is no reason that those measures could not have been implemented, as each of them was straightforward and relatively inexpensive; 2. Demolition work is inherently dangerous and carries a real risk of contact between workers and falling objects; 3. The risk was foreseeable, and the available guidance material emphasises the need for powered mobile plant used for demolition work, such as excavators, to be fitted with appropriate operator protective devices including FOPS; 4. The risk to safety was an obvious one. There is no evidence before me as to when the safety screen that was fitted to the front of the caterpillar excavator was removed, or by whom, however, it had not been replaced; 5. I accept however that the defendant was not blind to safety issues. I also accept that the defendant had systems and programs to address the issues of work, health and safety, but did not ensure that these measures were implemented. At the time of the incident the defendant: 1. had a jobsite folder for each project which it ensures was at site before any project began. It contained, amongst other things, all of Art Civil's SWMSs (as amended for a particular project); 2. engaged competent and trained personnel, including competent excavator operators; 3. engaged competent supervisors to supervise the works; and 4. undertook weekly tool box talks on site about the risks related to its undertaking. Copies of the notes with regard to the tool box talks are at pages 23-31 of the annexure to Mr Haddad's affidavit. 1. In August 2020 (a few days before the incident) there was a random inspection by SafeWork to assess the defendant's general approach to safety. The report from that inspection concluded that the defendant was compliant with work health and safety duties: see pages 17-20 of the annexures to Mr Haddad's affidavit; 2. A further site audit by SafeWork on 9 August 2023 accepted that the defendant was compliant with the relevant duties for those works: see [70]-[73] of Mr Haddad's affidavit, and pages 55-59 of the annexures there to).
As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was significant, and the steps available to avoid the risk were straightforward and available to the defendant. I note that the defendant accepts this.

Deterrence

In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 ('Bulga') at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said: "[74] … 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, 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. … [75] … 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."
General deterrence must be a significant feature of the sentence imposed upon the defendants. It can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with working in the excavation and demolition industry and using mobile plant.
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 WHS 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 other factors.
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.
Following the incident, the defendant has taken steps to ensure that screens and /or safe mesh are never removed again. In particular, the screen has been fabricated such that it is a very heavy permanent fixture to the machines and no longer a fitting which can be removed with the use of commonly accessible tools.
Further, the defendant engaged the services of a specialist work health and safety contractor, "Compliance Council", to review all of the defendant's safety procedures and to rewrite and redirect the defendant as to what further steps need to be taken in order to ensure that there is no further prospect of any accident on any site at which the defendant performs work.
I accept that the prospects of rehabilitation of the defendant are very good, however, the need for an element of specific deterrence is still necessary in these circumstances, as the defendant continues to operate in the same industry.

Aggravating Factors

The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this 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] (Hidden J, McColl JA and Levine J agreeing).
The defendant's offending conduct exposed a person or persons to a grave risk of death: s 21A(2)(ib) of the Sentencing Act.
Mr Williams sustained a broken left leg and a lacerated right leg as a result of the incident. He was conveyed by ambulance to the Royal North Shore Hospital and on 2 September 2020, he underwent surgery and had a steel rod placed in his leg. He has not returned to work with the defendant.

Mitigating Factors

In Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following: "We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question."
The defendant has not been subject to any prior convictions under work health and safety law: s 21A(3)(e) of the Sentencing Act. This is a significant feature to my mind as the demolition industry is inherently dangerous, and Mr Haddad has been working in that industry for about 30 years, and this is the first time an incident of this nature occurred during that period.
I accept that the defendant is a corporate citizen of good character and has made significant charitable donations as an active contributor to and sponsor of its community: s 21A(3)(f) of the Sentencing Act.
I accept the defendant is unlikely to reoffend: s 21A(3)(g) of the Sentencing Act.
I accept that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.
I accept that the defendant has demonstrated its remorse by providing evidence that it has accepted responsibility for the offence and has acknowledged the injury, loss and damage caused by the offence: s 21A(3)(i) of the Sentencing Act. I note that Mr Haddad forwarded a photograph of the new screen affixed to the excavator to Mr Williams to show him the new safety measure in place. Mr Haddad has also clearly demonstrated his remorse in his affidavit and has assisted Mr Williams to make sure that he is taken care of.
These steps, to my mind, demonstrate the defendant's acceptance of its breach, and has put in place a set of procedures to ensure they comply with the defendant's duties under the WHS Act.
The defendant co-operated with SafeWork NSW during its investigations: ss 21A(3)(m) of the Sentencing Act.
The defendant entered a plea of guilty early, which of itself demonstrates remorse, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis. Thus, I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the Sentencing Act.

Penalty

I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the offence is $200,000.00, and that will be reduced by 25% to reflect the plea of guilty. 3. Accordingly, I order the defendant to pay a fine of $150,000.00. 4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 5. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2023

Work Health and Safety Regulation 2017(NSW)

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