SafeWork NSW v Billyard Homes Pty Limited

THE INJURED PERSON

1. Mr Yin Peng Zhang (Mr Zhang) has been in Australia on a student Visa valid from 31 December 2013 to 15 May 2018. The Visa entitles him to work up to 40 hours per fortnight.
2. Mr Zhang's date of birth is 19 June 1992.
3. Mr Zhang was a worker employed by Sea Chen to undertake plastering and gyprock installation at the site. Since at least January 2014 Mr Zhang had been working with Sea Chen in accordance with his visa requirements. As of 29 June 2015, he had worked at the site for one or two days.
4. Mr Zhang had some experience working with gyprock and plaster. However, it was limited to the experience he had gained working for Sea Chen.
5. Mr Zhang was supervised by Mr Chen, who directed his work at the site. Mr Zhang held a General Construction Induction Card issued by Work Health and Safety on 12 January 2014.
6. Mr Zhang and Mr Chen had read and signed the Morabito/Sea Chen interior linings SafeWork Method Statement (SWMS) (issued in Chinese) on 5 June 2015. Included in the interior linings SWMS that they signed were instructions for working on scaffolding and being aware when walking. The SWMS stated that stairwell scaffold was not to be dismantled. It also included directions on using lightweight equipment on ladders and trestles and not overbalancing when working at heights.

THE SITE AND THE CONSTRUCTION

1. The site was being developed as a residential building.
2. The stair void scaffold was installed by JC and handed over to the offender on or about 16 March 2015.
3. Sea Chen commenced working at the site on Friday 26 June 2015. On that day Sea Chen completed a risk assessment of the site and signed a document stating that staircase barriers were in place and that the scaffolding was in good condition.
4. Sea Chen workers accessed the upper floor by means of a ladder affixed to the corner of the scaffold placed in the internal stairway void
5. There was a trapezoid-shaped void next to the scaffold structure measuring approximately 2m x 2.5m.
6. Prior to the morning of Friday 26 June 2015 the stair void scaffold installed by JC included scaffolding planks wired together and secured to the scaffold structure so that the trapezoid-shaped void was covered and not a risk.
7. At some point between Friday, 26 June 2015 and the time of the incident on Monday, 29 June 2015, the set of wired-together planks covering the trapezoid-shaped void was removed, creating a void through which a person could fall (the unguarded void). The unguarded void had no edge protection.
8. Workers engaged by Sea Chen were the only workers on the site on 29 June 2015.

THE INCIDENT

1. On 29 June 2015, work on the interior linings of the upper floor had been partially completed. Immediately following his lunch break, Mr Zhang climbed the ladder through the unguarded void for the purpose of plastering nail holes in the gyprock internal wall lining on the upper floor.
2. Mr Chen saw Mr Zhang ascend the ladder to the upper level but remained on the ground level.
3. Mr Zhang stepped completely off the ladder onto the scaffold and commenced, or was about to commence, plastering nail holes in the gyprock forming the internal walls. This was a task which required him to work in close proximity to the unprotected edge of the void. He fell over the edge through the unguarded void to the concrete ground floor. He fell about 2.5 metres.

INJURIES

1. Mr Zhang sustained multiple injuries as a result of the fall, including a major traumatic frontal brain injury, and associated head injuries.
2. When these proceedings were commenced in September 2016 Mr Zhang was still unable to work or continue his studies.

SYSTEMS OF WORK BEFORE THE INCIDENT

1. The offender had in place a Safety Management System (SMS) which included a Site Safety Plan (SSP) dated 1 October 2002. The document included general measures to be employed when working at heights. In particular, it provided that any person required to work above 1.8 metres was to be supplied with a perimeter roof rail system or, alternatively, a scaffold or other fall arrest system. The SMS and SSP were not site-specific. The offender did not conduct an induction to the site and did not conduct toolbox talks with any of the workers at the site.
2. Morabito had supplied Sea Chen with a risk assessment for interior linings, which Sea Chen completed and signed on 26 June 2015, when Sea Chen commenced working on the site. The risk assessment addressed the risk of falls from heights by ensuring that scaffolds and ladders were in good condition.
3. Morabito had also supplied Sea Chen with a SWMS for interior linings. A version of this document, in the Chinese language, was shown to Mr Zhang. Mr Zhang had signed a version of this document provided by Sea Chen on 5 June 2016. Apart from being shown this document, Mr Zhang was not provided with any information or instruction on how to perform his duties safely at height.
4. Mr Hefron the offender's supervisor was employed to supervise various job sites that the offender was working on, including other sites on the same street at Yarralumla Way, West Pennant Hills.
5. Mr Hefron made sure that workers understood that he was the site supervisor and that they had access to his contact number if there were any safety issues.
6. At the time of the incident, Mr Hefron and Mr Billyard were on the street of Yarralumla Way.
7. Mr Hefron had visited the site on 26 June 2015. He had not visited the site on 29 June 2015 prior to the incident. At some time in between his visits, persons unknown had unwired and removed some of the scaffolding planks, leaving an unguarded trapezoid-shaped void between the ladder and a side wall.
8. At the time of the incident, a Morabito supervisor Jeffrey Raymond Mandla was at an adjoining site.
9. On 29 June 2015 there was some partial scaffolding in place around the void. However it was not fully in place so as to adequately protect the void. There were no other fall prevention or fall arrest measures in place at the time within the void or at the upper floor level.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

1. The offender complied with an Improvement Notice 7-278891 issued by Inspector Stephen Maher on 30 June 2015 requiring elimination of the risk of falls from the edge of the upper floor stair void by re-installing the dismantled scaffolding planks which had covered the void as of 26 June 2015.
2. From 2016 the offender has changed its work process to obtain work method statements from subcontractors and Mr Hefron has conducted toolbox talks with tradespersons and subcontractors.

THE EVIDENCE FOR THE OFFENDER

1. Mr Arthur Frederick Billyard affirmed an affidavit on 8 November 2017. The offender has been in business since 1962. It is a company which was started by Mr Billyard's parents. Mr Billyard took over as a director in June 1966.
2. The main business of the offender is the acquisition, construction and sale of high quality residential homes. Since 1962 the offender has built about 700 homes and five three-storey apartment complexes. The offender constructs about 10-12 houses per year and has seven employees. Since 1962 the offender has never been the subject of any investigations or convictions. This incident is the first involving a significant injury since Mr Billyard became involved in 1962.
3. The offender contracted with JC to ensure that safe and compliant scaffolds were used on this and all other sites. JC had been doing scaffolding for the offender for about nine years. The offender had found JC to be professional and to produce a high standard of work.
4. The offender employs two supervisors who, along with Mr Billyard, attend each site under construction every day. The duty of each supervisor and Mr Billyard is to ensure that subcontractors and trades understand the work site environment and the safety issues that may arise. Mr Billyard takes personal responsibility to identify and address any safety issues that he observes on site.
5. In relation to the incident site, the offender contracted the plastering works to Morabito, with whom it has now worked for over 40 years. Morabito has proved to be professional and to produce high-quality work. The offender has never been aware of any major safety incident involving Morabito.
6. As to the incident itself, Mr Billyard said: "It is a well-known principle of construction work that no worker should adjust or move scaffolding other than the scaffolding company. Despite that, it seems that at some point between Friday 26 June 2015 and the time of the incident on Monday 29 June 2015, someone other than JC moved the set of wired-together planks covering the irregular shaped void creating a void through which a person could fall."
7. Mr Billyard said that no employee or supervisor of the offender knew of or authorised the unwiring of the planks. Mr Billyard acknowledged that no supervisor employed by the offender attended the site between the time the planks were unwired and moved, and the time of the incident at about midday on Monday 29 June 2015.
8. Mr Billyard said that if he or another supervisor had seen the dismantled scaffolding planks, everyone would have been stopped from working on the first floor until the planks had been reinstalled by JC.
9. Mr Billyard was on site elsewhere on Yarralumla Way when the accident happened. He went to the scene and assisted with medical care for Mr Zhang. After the incident the offender contacted JC and had it reinstall the dismantled scaffolding planks over the open void. This was done before any more work was done in that area.
10. The incident caused Mr Billyard and the offender to think carefully about the principal contractor's responsibilities on its building sites. Mr Billyard realised that it is not enough for the offender to hire reputable subcontractors, but the offender must ensure that the subcontractors understand the safety issues on site, have proper safe work methods, and that the offender supervises them to ensure they are following these methods. Mr Billyard has directed his supervisors to be more pro-active in having safety talks with subcontractors and trades on all sites. He directed the supervisors to ensure that subcontractors and trades attending each site were inducted into the site before starting work. Toolbox talks are now held with all subcontractors and trades regarding working from height, scaffolding, and in particular reinforcing the instruction that scaffolding is not to be altered or moved except by a licensed scaffolder.
11. Following the incident, there have been no accidents or SafeWork-related incidents on any of the offender's sites.
12. Mr Billyard said that he was truly sorry about the accident involving Mr Zhang. He accepted that the failures of the offender contributed to the risk that resulted in the injury to Mr Zhang. Mr Billyard said that he and the offender had learned a valuable lesson through the entire stressful experience of being investigated, paying lawyers and agonising over the details of the accident.
13. Mr Billyard annexed to his affidavit a large amount of appropriate documentation demonstrating the offender's commitment to safe working practices.
14. The offender also relied upon an affidavit of Mr Craig Wayne Hefron affirmed on 8 November 2017. Mr Hefron has worked for the offender since about 2005 as a supervisor, but before that he worked as a carpenter from 1987 onwards.
15. In March 2015 he signed the acceptance of a Handover Certificate of the stair void scaffold from JC. All of the metal scaffolding planks were wired to the scaffold structure. He adjudged the scaffolding, as completed by JC, as satisfactory and safe. The risk of falling was addressed by the scaffolding itself. The edges of the scaffold butted against existing internal walls and the trapezoid-shaped void was not in existence, as it was covered by a set of wired planks secured to the main scaffold structure.
16. On Thursday 25 June 2015 Mr Hefron was at the site and observed from the ground floor that the scaffold structure and planks were intact. At 7.00am on Friday 26 June 2015 he attended the site and saw that Sea Chen had about five employees at the site. He observed from the ground floor that the scaffold structure remained intact and that the void adjacent to the scaffold structure remained covered by the planks.
17. Mr Hefron was present in Yarralumla Way when the incident occurred, and he too went to the scene to assist Mr Zhang.
18. After the incident Mr Hefron resecured the fencing around the site. He contacted JC and they came and fixed up the scaffolding planks. This work was later inspected by a SafeWork inspector who was happy with the fencing and the scaffolding around the stair void.
19. Mr Hefron said that if he had seen that the scaffold planks had been dismantled, he would have stopped Sea Chen and its employees from working on the first floor, and would have required the scaffold planks to be reinstalled by JC.

CONSIDERATION

1. I have had regard to the objects of the Crimes (Sentencing Procedure) Act 1999 set out in s 3 and the purposes of sentencing set out in s 3A.

OBJECTIVE SERIOUSNESS OF THE OFFENCE

1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No. 2) (1998) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].
2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1998) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
3. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
4. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.
5. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338. His Honour Justice Basten at paragraph 34, under the heading 'Assessment of Risk' said: "The sentencing judge commenced his consideration with the proposition that 'greater 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 on assessment of all those factors."
6. Further at paragraph 42 his Honour continued: "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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
7. My findings about the offender's level of culpability are based upon the following: 1. Workers such as Mr Zhang were placed at risk of death or serious injury as a result of a fall from height. The risk was obvious, identifiable and foreseeable; 2. The risk was specifically identified in: 1. SafeWork Australia Managing the Risk of Falls at Workplaces Code of Practice March 2015; 2. SafeWork Australia National Code of Practice for the Prevention of Falls in Housing Construction April 2010; 1. The offender failed to ensure that the codes of practice outlined were followed; 2. The offender did have an established safe system which included the necessity to adopt appropriate protection against the risk of a fall from height; 3. The scaffolding was safe at an earlier point in time, although appropriate supervision would have picked up that it had been interfered with; 4. The cost to the offender of overcoming the risk would have been small. A safe scaffold which appropriately protected the void was already in place, and all that was required was for the offender to attend the site for supervision purposes, and check that the scaffold was still in place. 5. The offender did not conduct any formal toolbox meetings with workers to discuss work, health and safety issues. Rather, it relied upon known and trusted subcontractors to work safely; 6. The likelihood of the risk coming home was high; 7. The injuries sustained by Mr Zhang on 29 June 2015 were a manifestation of the risk. 8. This was a case where the offender had appropriate safety documentation and had engaged competent and reliable contractors to perform work. The offender had checked on two occasions the state of the scaffolding and had observed it to cover the void completely. The deliberate removal of completely safe scaffolding planks by an unknown party was an unexpected event, although the risk caused by that could have been prevented by appropriate supervision by the offender.
8. I find that the offender's level of culpability is in the low range.

DETERRENCE

1. The penalty imposed in relation to these offences 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 Limited v Nash (2016) NSWCCA 37 at [180].
2. The penalty must reflect the need for specific deterrence. The offender is still conducting a business. Many of its operations involve working at heights. While the company has 7 employees, it engages between 20 and 25 trades on a residential construction site.

AGGRAVATING FACTORS

1. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

MITIGATING FACTORS

1. The offender does not have any record of previous convictions: Section 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999. In fact, the offender has an extraordinarily good record, having been in business for 53 years before this incident, and never having a significant injury or a conviction for any safety offence.
2. The offender is otherwise of good character: Section 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the incident demonstrate this.
3. The offender is unlikely to re-offend: Section 21A(3(g) of the Crimes (Sentencing Procedure) Act 1999.
4. The offender has good prospects of rehabilitation: Section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken positive steps to guard against the risk of an incident such as this ever happening again.
5. The offender has shown remorse for the offence: Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender proved that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Zhang was caused by its actions.
6. The offender entered a plea of guilty: Section 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when it pleaded guilty, and the circumstances in which it indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. In my view the offender entered a plea of guilty at the earliest possible opportunity, a matter conceded by the prosecutor. It is appropriate to apply a discount of 25%.
7. The offender gave assistance to law enforcement authorities: Section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offender co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.
8. Senior Counsel for the offender submitted that it was appropriate to take into account the size of the company when fixing a penalty. He also submitted that it was appropriate to take into account the personal role of the director who has brought about change in the processes of the company as a result of this incident. I accept that it is relevant to take those matters into account: Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338 at [59-60].

CAPACITY TO PAY A FINE

1. I am required to have regard to s 6 of the Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, he bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
2. No submission was made as to the offender's capacity to pay a fine.

VICTIM IMPACT STATEMENT

1. A written Victim Impact Statement, signed by Mr Zhang and dated 17 November 2017, was placed before the court. He suffered a significant head injury as a result of the fall. He has problems with his memory, in talking to other people, in understanding what other people are talking about and in concentration. He suffers from headaches. His speech has been affected and he finds difficulty in expressing himself correctly. He has found himself becoming quite isolated socially.
2. Mr Zhang has pain in the neck almost every day which gets worse with activity or bad weather. He injured the right side of his head, and suffers pain there every day, needing to take pain killers. He gets dizzy and suffers from numbness on the right side of his head. He now has tinnitus and hearing loss in the right ear.
3. He has difficulty with simple cognitive tasks such as calculating the change when shopping. He has to make lists as he forgets things. He now becomes very emotional and can rapidly become anxious and angry. He cannot control himself if there is something that makes him unhappy. He is afraid that he will not be able to find a job to support himself and that he will become a burden on his family.
4. Before the incident Mr Zhang was studying full-time in Sydney and working part-time during the holiday periods. He is presently receiving a weekly benefit from workers compensation insurance. His father has had to travel to Sydney from China to look after him.
5. I take into account the Victim Impact Statement in determining the appropriate punishment for the offence on the basis that the harm caused to Mr Zhang is an aspect of harm done to the community: s 28(4) Crimes (Sentencing Procedure) Act 1999. I find that it is appropriate to take this into account.

COSTS

1. The parties have agreed to an order that the offender is to pay the prosecutor's costs agreed in the sum` of $24,500.

PENALTY

1. The offender is convicted.
2. I take into account the Victim Impact Statement.
3. The appropriate fine is $80,000 but that will be reduced by 25% to reflect a plea of guilty.
4. I impose a fine of $60,000.
5. I order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
6. I order the offender to pay the prosecutor's costs agreed in the sum of $24,500.

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: 24 November 2017