SafeWork NSW v City Projects Pty Limited

PLANT AND EQUIPMENT

1. The forklift involved in the incident was owned by Enfrex Metal Works Pty Ltd (Enfrex), a business adjacent to the offender. The forklift is a two tonne forklift with two tines extending from the front of the forklift.
2. The glass crates variously measured approximately: 2.795 meters long x 1.095 meters high x 750mm wide; 2.795 meters long x 870mm high x 300mm wide; 2.795 meters long x 410mm high x 160mm wide; and 2.750 meters long x 275mm thick x 1.530 meters wide.

THE INCIDENT

1. On 17 March 2016 Mr Lombardo commenced work at 6.30am and Mr Kastropil commenced work at 7.30am at the premises.
2. On 17 March 2016 Mr Rami Ealya commenced work between 5.30am and 6.00am performing duties for SWIFT. He had completed two or three jobs on behalf of SWIFT before proceeding to Banksmeadow where ten glass crates were loaded onto the truck. Some of the crates had been strapped together (the glass packages). He then drove the truck carrying the glass crates to the offender's premises arriving at approximately 3.30pm.
3. The delivery of glass crates to the premises was not scheduled to arrive on 17 March 2016 but had been scheduled to arrive earlier that week.
4. The usual method of unloading trucks adopted by the offender was either by way of manual handling or with the use of a Crown Walker Stacker forklift.
5. The weight of the glass packages was unknown to the offender. The offender was not provided with any manifest details in respect of the weight of the individual glass packages or crates. No weight was given on the crates by the supplier.
6. Each crate contained between 2 to 15 large sheets of glass. Mr Kastropil and Mr Lombardo thought that the crates were too heavy to use the Crown Walker Stacker forklift to unload them.
7. Mr Kastropil decided to borrow a two tonne forklift from Enfrex to unload the glass packages from the truck and transport them into the warehouse at the premises. Mr Lombardo was instructed by Mr Kastropil to operate the two tonne forklift.
8. After unloading the first two glass packages, a larger glass package was encountered and the forklift tines were too short to fit under the glass package. As a result, this glass package was separated by undoing the surrounding straps and unloading the glass crates onto the forklift tines individually. The first of these crates was unloaded into the warehouse using the forklift.
9. The second of the unstrapped glass crates was placed onto the forklift (the second glass crate). The second glass crate contained 12 sheets of glass and measured approximately 2.750m long, 1.530m high and 275mm wide. Due to the slim width of the second glass crate, two empty timber pallets were placed between the mast of the forklift and the second glass crate on the forklift tines.
10. CCTV footage at the premises shows that Mr Lombardo was unable to see in front of him while driving the forklift once the second glass crate was loaded onto the forklift.
11. Mr Kastropil and Mr Ealya walked on either side of the forklift to guide Mr Lombardo and stabilise the second glass crate which was unsecured and unstable due to the high centre of gravity. Mr Ealya walked next to the load with his hand positioned on the top left corner of the second glass crate.
12. Once inside the warehouse, it was necessary for the forklift to make a left-hand turn.
13. When the forklift straightened its tilted tines the forklift jerked slightly. The weight of the second glass crate tipped forward and fell from the top. In response, both Mr Kastropil and Mr Ealya moved in front of the second glass crate in an attempt to manually prevent it from falling.
14. The second glass crate continued to fall and Mr Ealya sustained serious injuries when it fell forward from the forklift landing on, and crushing, his left leg. Mr Kastropil was able to move backwards in order to avoid the second glass crate falling onto him. This was depicted in CCTV stills tendered in evidence.
15. Mr Ealya's leg was trapped under the top of the second glass crate. Mr Lombardo attempted to lift the second glass crate from Mr Ealya's leg using the forklift, however, due to the angle of the forklift tines under the crate, this only put further pressure onto Mr Ealya's leg.
16. Eventually, an Enfrex staff member attended the premises and was able to manoeuvre the forklift. The offender and Enfrex staff used wooden beams in a lever system to lift the front of the second glass crate off Mr Ealya's leg. They rendered first aid.
17. Neither Mr Lombardo nor Mr Kastropil held the appropriate licence to operate the forklift.
18. A prohibition notice was issued by SafeWork NSW regarding the further unloading of the remaining glass packages from the truck.
19. Located on the side of the crates were illustrations of the suggested methods of handling and transportation of the glass and glass crates. The second row of the illustration shows a top lift method of handling the glass crates.

INJURIES

1. As a result of the incident Mr Ealya has had a plate and six screws inserted to repair his broken leg.
2. Mr Ealya was in hospital for 10 days following the incident. He was required to wear a leg brace for six weeks and undergo physical therapy and rehabilitation.
3. Mr Ealya had not returned to his pre-injury duties as at 17 June 2016. No other information about his condition was presented.

SYSTEMS OF WORK BEFORE THE INCIDENT

1. As at 17 March 2016 neither Mr Lombardo nor Mr Kastropil held a high risk work licence. The offender was aware that Mr Lombardo did not hold a licence to operate a forklift.
2. Clause 81 and Schedule 3 of the Work Health and Safety Regulation NSW 2011 mandate that a person must not carry out high risk work, which includes operating a forklift, without a high risk work licence.
3. The offender did not have a system in place to ensure that workers who had not undergone training to operate a forklift and who did not hold certification allowing operation of a forklift were prohibited from operating a forklift.
4. SafeWork NSW's guidance material titled "General Guide for Industrial Lift Trucks" dated July 2014 was available on SafeWork NSW's website at the time of the incident. At page 2 it provides that: "A person who operates a forklift truck must hold a valid high risk work licence for the type of industrial lift truck they are operating, be trained to operate the type of industrial lift truck and attachments they are using, and are provided with information, training and instruction on the hazards, risks and control measures relevant to the workplace."
5. Australian Standard AS2359.2-2013 Powered Industrial Trucks was available prior to the incident for purchase via Standards Australia's website.
6. The Standard states that when handling and placing loads using a truck, the following requirements and precautions shall be observed by the operator: "(a) Operators shall assess load weight, load centre, load height and compare it with the actual load capacity of the truck and any attachment fitted, before lifting the load. (b) Before attempting to lift, adjust or place any load, the operator shall ensure that no persons can be struck by the load if it moves, overbalances, or falls."
7. There were no assessments undertaken to ensure the forklift was appropriately load rated and could safely and appropriately remove the glass crates from the truck. No safe system of work was in place in relation to the use of forklifts at the premises.
8. The offender did not have any specific safe systems of work, policies or procedures in relation to the unpacking, handling and transportation of glass packages and glass crates once they were delivered by truck to the premises.
9. There was no risk assessment for the operation of unloading the glass packages and glass crates from the truck once they were delivered.
10. Mr Kastropil had received no information, training or instruction on how to unload trucks by means other than manual handling. He had received no information, training or instruction on the safe unloading, handling and transportation of glass.
11. Glass had never previously been delivered to the offender's premises. All glass was usually supplied, delivered and installed at the relevant building site by a licenced glazier. Mr Kastropil had never previously unloaded glass, however, he knew that the glass crates would be arriving.
12. Safety Alert - Storage and Handling of Glass Sheets issued by SafeWork NSW (formerly WorkCover NSW) was available on the SafeWork NSW website at the time of the incident. The publication states that: "Employers must also ensure that workers are provided with adequate training and supervision to handle glass safely."
13. SafeWork NSW's Safety Alert - Working with sheet materials dated February 2012 was available on SafeWork NSW's website at the time of the incident. This publication confirms the risks associated with working with sheet materials, inclusive of glass sheets. It relevantly states: "Remain clear of hazard (fall) zones when lifting and handling sheets. Ensure that workers are adequately trained and supervised for the tasks they are performing."
14. WorkCover NSW's Safety Sheet titled "Handling Glass Safely" was available at the time of the incident and published on 24 April 2015. The publication uses picture illustrations to show methods for handling glass. The publication states that when handling glass: "• Use mechanical devices to move glass where possible. • Use appropriate lifting devices and restraints. • Lift only from the safe lifting points as indicated on the package."
15. There was no requirement in place for delivery drivers to undertake a site induction by the offender or to remain in a designated safe zone during the unloading of their truck.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

1. In compliance with SafeWork NSW notice no: 7-288536, the offender produced a revised Safe Work Method Statement titled "Handling and Transportation of Glass" which was developed in consultation with a competent person. The revised document addressed the previous control measures used when the incident occurred. This Safe Work Method statement was used to remove the remaining glass packages in the warehouse post incident, with no issues identified.
2. In compliance with SafeWork NSW notice no: 7-288545, the offender produced a Safe Work Method Statement titled "Use of Forklift". Point 1 states persons operating forklifts must be licenced with point 8 stating keys for the forklift when it is not in use must be kept in the designated locked location to which only authorised persons have access.
3. In compliance with SafeWork NSW notice no: 7-288539, the offender produced a Traffic Management Plan which identified areas which prevent pedestrian access to the warehouse during movement of loads and unloading trucks. It also identified exclusion zones from plant during these movements and identified persons who are authorised to enter the warehouse.
4. The Traffic Management Plan also contains a procedure for delivery drivers. When they arrive at the premises they must attend the office and remain in the office whilst loads are being unloaded. The Traffic Management Plan also contains a checklist which is to be completed on the arrival of every load which assesses risks associated with the loads and the best method for unloading.
5. The offender has put in place forklift driver training and a licencing course. The offender has created a Forklift Checklist.
6. The offender has implemented a procedure that no materials for building sites are to be delivered to the warehouse at the premises. All materials are to be delivered straight to site and unloaded and stored there by qualified and competent personnel.
7. Since the incident Mr Lombardo has obtained a High Risk Work Licence for the class LF.

THE EVIDENCE FOR THE OFFENDER

1. The evidence for the offender was contained in the affidavit of Mr Bacic dated 8 December 2017. The primary nature of the offender's business is the installation of plasterboard and fit-out works for construction and renovation projects involving office and commercial premises. In 2015 the turnover of the offender was $8.9 million. It was similar in 2016. In 2017 the company had a turnover of $2.3 million. This was said to be the result of a conscious decision by the directors to scale back the scope of the business.
2. The offender works on a large number of construction projects as a subcontractor to head contractors such as Mirvac and LendLease. The offender has to meet strict safety requirements on those sites. Mr Bacic annexed to his affidavit copies of the typical safety documentation relating to work done by the offender on large construction projects. It is a very thorough documentation.
3. However, at the time of the incident there were no written procedures for any work done at the warehouse.
4. The offender not only has no previous convictions, but has never had an employee or a contractor lose time due to injury in the 12 years that the business has been operating.
5. Mr Bacic set out how there had been four or five attempts to deliver the containers of the glass panels, but he had indicated that it was too difficult and indeed dangerous to unload the panels in the form in which they were delivered, within containers. He sent the containers back to the supplier on each occasion.
6. Mr Bacic had no personal knowledge that Mr Kastropil had borrowed the forklift from the business next door. If he had known that the forklift was to be used he would have stopped it immediately.
7. As a result of the incident, the offender consulted with SafeWork NSW and created a traffic management plan, a Safe Work Method Statement relating to the use of forklifts and a Safe Work Method Statement for dealing with the remaining glass panels within the warehouse. The offender engaged a registered safety auditor to inspect the WHS system within the warehouse.
8. As a result of advice received from that auditor, a blanket ban was put in place that no deliveries for projects were to be unloaded at the warehouse. The warehouse is now purely used for storage of tools and equipment used by the offender and does not require the use of any vehicles to move items. This eliminates the risk of injury in handling any large delivered goods, such as those involved in the incident.
9. Mr Bacic gave evidence about the other safety steps which have been taken at the warehouse.
10. The offender, through Mr Bacic, expressed regret and remorse for the accident, which I regard as genuine. The offender is a responsible corporate citizen which regularly donates to hospitals and other charities.

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. The offender and its employees were on notice that the glass packages were large in dimension and heavy. This was because: 1. Crates of glass had been previously delivered to the warehouse; 2. Mr Kastropil had seen photos of the unpacked glass packages; 3. The offender's employees borrowed a forklift in order to move the glass packages. 1. Workers were placed at risk of death or serious injury. The risk of being struck by a moving forklift or its load, was obvious, identifiable and foreseeable. This risk was heightened by the load being precariously balanced on the tines with no restraints in place. 2. It is a legislative requirement that forklift operators need to be adequately trained and licensed. A person must not carry out high risk work without a high risk work licence. This requirement is clearly directed towards addressing the risks associated with unqualified personnel operating forklifts. 3. The risk was compounded by Mr Eayla and Mr Kastropil guiding and steadying the forklift and its load. This was not just an accident waiting to happen, it was an accident almost 100% certain to happen. 4. The existence of the risk was known to the offender and was identified in: 1. Australian Standard AS2359.2-2013 Powered Industrial Trucks; 2. SafeWork NSW General Guide for Industrial Lift Trucks published July 2014; 3. WorkCover NSW Safety Alert regarding Storage and Handling Glass; 4. WorkCover NSW safety sheet entitled Handling Glass Safely. 1. The offender's work health and safety systems were inadequate for its own warehouse. It did not have: 1. a Traffic Management Plan; 2. a Safe Work Method Statement for the use of forklifts; 3. a Safe Work Method Statement for the handling and unloading of glass. 1. Mr Kastropil who was the offender's safety coordinator: 1. had no information training or instruction on how to unload trucks other than by manual handling; 2. was not trained or instructed in the safe unloading, handling and transportation of glass; 3. failed to undertake a risk assessment at any time prior the glass packages delivery and unloading. 1. There were simple, inexpensive and readily available steps which could have been put in place by the offender to control and eliminate the risk including: 1. making other arrangements for the delivery of the glass crates; 2. conducting a risk assessment as to how to unload the glass crates; 3. implementing forklift driver training and licensing courses; 4. implementing a forklift checklist for use at the Premises; 5. devising and implementing a traffic management plan at the Premises; 6. declaring a prohibition on deliveries for projects being unloaded at the Premises.
8. I find that the offender's level of culpability is in the high end of the mid-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.

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: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.
2. The offender is otherwise of good character: s 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: s 21A(3(g) of the Crimes (Sentencing Procedure) Act 1999. All risks involved in unloading building materials have been dealt with by the newly adopted procedures.
4. The offender has good prospects of rehabilitation: s 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: s 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 the victim was caused by its actions.
6. The offender entered a plea of guilty: s 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. The offender indicated its intention to enter 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: s 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.

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, it 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. I have no evidence from the offender that it has a limited capacity to pay a fine, so this issue does not arise.

COSTS

1. The parties have agreed to an order that the offender is to pay the prosecutor's costs agreed in the sum of $17,527.

PENALTY

1. The offender is convicted.
2. The appropriate fine is $200,000 but that will be reduced by 25% to reflect a plea of guilty.
3. I impose a fine of $150,000.
4. I order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
5. I order the offender to pay the prosecutor's costs agreed in the sum of $17,527.

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 December 2017