SafeWork NSW v Deicorp Pty Ltd

District Court of NSW|2018-07-10

Judgment

Deicorp Pty Ltd ('the offender') pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 ('the Act'), by failing to comply with its health and safety duty imposed upon him by s 19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the offender's business or undertaking and in doing so exposed an individual to a risk of death or serious injury.
This offence, in the case of a corporation, carries the maximum penalty of $1,500,000.
The offence was committed at a construction site located at 1 Victoria Avenue, Ashfield on 12 January 2016. At that time and place there were workers working in the offender's business who were exposed to a risk to their health and safety. One of the workers exposed to the risk was Bikay Kusimweray ('Kusimweray') who, as a result of being exposed to the risk, was actually injured when the risk came home.
The prosecutor tendered an Agreed Statement of Facts and an Agreed Tender Bundle which forms the basis of the background set out below.

DEICORP AGREEMENT and ROCK FORM AGREEMENT

The offender and Rock Form entered into an agreement 'AS2545-1993 Construct Only Subcontract (Amended)' ('the contract') on 14 July 2015, with the Rock Form being described in the contract as the "subcontractor". The contract provided that the scope of the works for which Rock Form was responsible included 'supply, erection and dismantling of all formwork, covering, propping, shoring, boards, bearers and the like.' It also provided that Rock Form was responsible for 'stripping and removing formwork to deliver outcomes in the project construction program' of the workplace.
The contract provided that the offender 'would supply all fall protection measures while on site for all, unsafe locations on site (including but not limited to); voids, lift shaft opening, drops of greater than 800 mm. Edge protection was to remain in place until not required to WHS/OHS requirements.'
The contract further provided that the offender would provide scaffold if required, would inform Rock Form of the construction schedule and program and whether materials were ready to be stripped at the workplace.
Deicorp contracted Sydney Hoist and Scaffolding Pty Ltd ('SHS') to erect and install perimeter health scaffolding for the workplace. Mr Maulik Soni ('Soni') was SHS's engineer and was responsible for designing and inspecting the scaffold. Mr Charlie Charlie ('Charlie') was SHS's leading hand.
Rock Form subcontracted LG Group (NSW) Pty Ltd (LG Group) to do formwork at the workplace. LG further engaged Yelchen Formwork Pty Ltd ('Yelchen') for general stripping and cleaning of formwork.
LG Group employed Mr Khander Dabeet ('Dabeet') as foreman for the workplace. He was present at the workplace daily. His responsibilities included management of the formworkers at the workplace, day-to-day management for the workplace for Rock Form and induction of workers. Dabeet reported to the offender's foreman, Fitzgerald and was directed by the offender's foreman as to the works required to be undertaken at the workplace.
Mr Bikay Theodord Kusimweray ('Kusimweray') was a worker employed by Yelchan. Kusimweray was a worker for the purposes of s 7 of the Act. He commenced employment as a formwork labourer with Yelchan on 4 January 2016. Dabeet was Kusimweray's supervisor.
At the southern edge of levels 1 to 3 of the building under construction at the workplace between scaffold and the edge of the concrete slab were accessible penetrations measuring approximately 400 mm in width and 1000 mm in length ('the penetrations').
On about 19 or 20 November 2015, Soni attended the workplace at the request of Charlie as Charlie wanted to support a balcony on the scaffold and required Soni's input. Whilst at the workplace and upon inspecting the construction, Soni observed that there were gaps between the scaffold and the building and a few internal handrails on the scaffold were missing on level 1 of the workplace. Soni requested Charlie to close the gaps. Soni reported this to Fitzgerald, and Fitzgerald advised him that the gaps were normal on building sites, and that he did not want any more hop ups as it would get in the way of the bricklayers. Fitzgerald further stated that the offender would not pay SHS for the extra work.
As a consequence of this discussion, Soni advised Charlie to provide double internal handrails to avoid fall hazard from the scaffold. Soni also stated that he advised the offender to provide temporary handrails on the slab to prevent fall hazard from the slab prior to leaving the workplace.
Following this discussion, Soni sent the following email to Fitzgerald on 20 November 2017; 'Dear Luke, As discussed on the site that I have noticed larger gaps between slab and scaffold at some places. From our discussion I also understand that this initial gaps are unavoidable due to planned brickwork and once the brickwork will start (approximately in two weeks' time) these gaps will become smaller. In current condition, on larger part of the existing scaffold the gap is within 225mm. Where the gap is larger I have advised scaffold leading hand Charile to provide double internal handrail to avoid fall hazard from the scaffold (see attached photo). At the places of larger gap, we also recommend you to provide temporary hand rails on slab to prevent fall hazard from slab.'
A photograph of the gap was attached to the email. Fitzgerald did not respond. Fitzgerald went on leave in November 2015 and Elazi undertook foreman duties on Fitzgerald's behalf.
Rock Form was unaware that LG Group subcontracted Yelchen to undertake formwork duties and that Yelchen workers were at the workplace on the day of the incident.
Dabeet directed Yelchen workers, including Mr Kusimweray to undertake formwork activities, which included stripping formwork, putting up frames, timbers and plywoods. On 12 January 2016 Kusimweray commenced work at the workplace at 7am and Dabeet directed him to strip the plywood and timber, clean it, stack it on level 3 and take it to level 5. Following such instructions, Kusimweray undertook duties such as taking the nails out of the timber, stripping the timber, putting the timber in order and taking the materials to the next level.
On 12 January 2016 there was no exclusion zone around the penetrations and access to areas in the vicinity of the penetrations was not restricted. No edge protection was in place on the concrete slab on level 3 in the vicinity of the penetration on this level nor was the penetration securely covered.
At some time on or prior to 12 January 2016, planks of wood were placed over the gap between the edge of concrete slab and the scaffold on level 3 of the premises. The plywood was not secured as at 12 January 2016.

THE INCIDENT

On 12 January 2016 Kusimweray was at work at the workplace undertaking formwork duties in the vicinity of the penetration on level 3. At the time of the incident he had worked at the workplace as a formwork labourer for approximately one week and a day. His duties include taking nails out of the timber formwork, stripping the timber formwork and cleaning formwork.
Whilst Kusimweray was working from the concrete slab stripping the southern edge of the building, he stepped onto an unsecured plywood board between the concrete slab and the scaffold. The plywood gave way and he fell between the scaffold and the slab from level 3 to level 1. He was conveyed to Royal Prince Alfred Hospital for emergency treatment.
As a result of the incident, Kusimweray sustained serious injuries which required surgical treatment. He was discharged from hospital on 22 January 2016. I have had regard to the Victim Impact Statement provided by Kusimweray and note that he has unfortunately suffered greatly. The accident and the injuries he has sustained have impacted him physically, emotionally and financially.

SYSTEMS OF WORK BEFORE THE INCIDENT

Deicorp had a "Work Health and Safety Plan ('WHS Plan') for the workplace dated 16 May 2012. The plan contained a section titled Monitoring SWMS, and under this section, it's site manager was "responsible for ensuring that all employees and subcontractors had read and understood their relevant SWMS prior to commencing on site". It also included a WHS Induction section to "ensure nobody commenced work on site until there had been confirmation that they had completed the WHS Induction Training Course for Constructions Work in NSW, they had received a Work Activity WJS induction (including understanding and signing off on SWMSs), and completed a site specific WHS Induction.
The site manager also was required to ensure that all workers intending to work on site had met those requirements, and those workers who were successfully inducted would receive a sticker to place on their helmets.
Item 6 of the Site Safety Rules ('SSR') required handrails be erected where any step or drop exceeded one metre. Item 7 required that signage be erected to provide appropriate warnings. Item 9 required that scaffolding be erected and maintained in accordance with the manufacturers and authority requirements.
The offender did not erect or maintain handrails, barricades and scaffoldings at the workplace in compliance with items 6 and 9 of the SSR. The offender did not provide any site signage on appropriate warnings at the workplace in accordance with item 7 of the SSR.
Guidance was readily available to the offender in the WorkCover NSW Code of Practice and in the Work Health and Safety Regulation 2011, both of which identified the hazards and risk associated with the work that was being done, and recommendations as to how to manage or eliminate the risks. In December 2011 SafeWork Australia published a Code of Practice entitled 'Managing the Risk of Falls at Workplaces Code of Practice'. There is no evidence that the offender exercised due diligence by taking reasonable steps to ensure compliance with the Code of Practice.

SYSTEMS OF WORK AFTER THE INCIDENT

After the incident the offender installed temporary handrails at the edge of the slabs until 'top-ups' were installed to bring the gap between the scaffold and edge of the building to less than or equal to 225mm.
The offender also instructed SHS to fix and alter the scaffold at the workplace after 13 January 2016. On 22 January 2016 SHS moved the scaffolding closer to the building, and installed visual tape on the slab and handrails.
The offender now provides both a hard copy and electronic copy of their WHS Code of Practice 2015 to all construction sites. There is mandatory training for site employees in various first aid courses, risk and emergency management, licensing and awareness. The offender has contracted a third party consultant agency to bolster their training procedures.
At each of the offender's construction sites there is now a Workplace Safety Officer dedicated to managing the work health and safety issues that may arise. The safety officer receives a monthly WHS report containing a summary of any issues that have arisen on other of the offender's sites, updates on procedure and advice on upcoming training and seminars.
Specifically aimed at reducing and managing the risk around penetrations, the offender now ensures that only the scaffolding company and its employees install, modify and dismantle scaffolding. Exclusion zones are now established where there is a penetration to prevent workers from that risk.
Induction is now a more thorough process that involves a colour coordinated sticker system which records when and where a worker was inducted to identify those who have completed this requirement.
The offender's WHS plan is reviewed annually and updated accordingly.

Prior History

The offender has not previously appeared before the courts on health and safety matters.

Considerations

I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 for the purpose of sentencing.

Objective Seriousness of the Offence

The duty of the offender requires that they ensure that the health and safety of workers as far as reasonably practicable. As the offender pleaded guilty, it has admitted that the measures to ensure safety would have been reasonably practicable. This duty is not delegable, and the offender cannot escape it's liability as a consequence of its contractual relations with other parties, as the offender had control and influence over the workers at the site. The duty requires the identification of risks in the workplace, and an assessment of measures to address such risks.
The proportionality principle requires that sentence should neither exceed nor be less than the gravity of the crime having regard to objective circumstances: Veen v R (No. 2) (1088) 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].
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 time limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] MSWSC 432 at [61].
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.
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 attached to the failure to guard against 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.' 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 and overall evaluation of various factors, which may pull in different directions.'
My findings about the offender's level of culpability are based on the following: 1. The risk in these circumstances was the risk of falling through an open penetration whilst undertaking formwork duties. Unfortunately the risk came home. The consequences were potentially catastrophic, and the worker was lucky to have survived. His injuries were serious and had a significant impact on him. 2. The nature of the risk was obvious, glaringly so. The measures that could have been taken to control or eliminate the risk were not difficult or expensive, and as such the offence is more objectively serious. The risk of falling from heights on building and construction sites are notorious. It is common sense that people working at height are at risk of falling down unless there is something that intervenes to prevent that occurring. 3. The offender failed to implement the following measures to control the risk of a worker falling through the penetrations: 1. Installing edge protection such as guard rails or other physical barriers around the edge of the penetrations; 2. Installing extra scaffold planks and/or hop ups to minimise the size of the gap/penetrations; and 3. Securely covering the penetrations. 1. The offender could have set up exclusion zones to prevent or restrict access to any areas where there were penetrations through which a worker could fall. It did not. 2. The offender could have prohibited work being carried out in areas where penetrations through which a worker could fall, had been securely covered. It did not. 3. The offender could minimize the size of the gap through which a worker could fall by installing hop ups or edge protection. It did not. 4. The offender could have undertaken an inspection of the workplace prior to work being conducted to ensure it was in a safe condition and the penetrations had been adequately secured or restricted. It did not. 5. The offender should have provided Kusimweray with adequate information, training, instruction and induction to undertake framework duties at the premises by ensuring: 1. He was provided with a site specific induction, and/or 2. He had read and understood the offender's work, health and safety plan, and/or 3. He was informed of the presence of the penetrations at the premises. 4. There is no evidence that any of these things were done.
As a result of these failures worker such as Kusimweray were exposed to a risk of death or serious injury. None of these measures would have been expensive, time-consuming or unreasonably practicable.

DETERRENCE

The human resources manager of the offender, Matthew Skinner ('Skinner'), swore an affidavit on 9 July 2018 in which he indicates that he is authorised to swear an affidavit on behalf of the offender. He expresses both personal remorse and deep remorse on behalf of the offender, its directors and managers for the hurt caused to Kusimweray and his family. The offender unreservedly accepts that it unlawfully allowed Kusimweray to be exposed to risks to his health and safety. The offender offers an unqualified apology for its breach of the WHS Act.
The steps that the offender has taken subsequent to the accident are impressive. They have put in place reviews and specific planned steps that are now taken to ensure that the safety of workers is paramount on site.
The offender raised in their submissions, the fact that the offender was not aware that Rock Form had subcontracted out the works. They submit that as such, they were not necessarily aware who is on site, nor as to whether there has been appropriate induction and/or training. The offender further submits that subcontracting is a common occurrence in the building industry. As a consequence of the incident, the offender is conducting spot checks and random audits to keep abreast of this practice. This step has been taken as a consequence of the incident.
The prosecution takes strenuous objection to this issue being raised in mitigation. They submit that irrespective of who was on site, it is the offender's site and they bear the obligation to ensure the safety of any worker on the site. I agree with that submission, and note that the obligations imposed by the legislation cannot be delegated to another whether knowingly or otherwise. Rather than this being an issue in mitigation, it is in my view an aggravating factor. Turning a blind eye as to what is happening on your worksite can be no excuse for failures to ensure that the workers are not exposed to risks of serious injury or death.
The offender accepts that the risk was foreseeable and that as such, the incident is objectively serious. Counsel for the offender concedes that the offence does not fall within the mid-range.
I accept that the offender has shown contrition and remorse. He has accepted full responsibility for the accident. The offender has taken significant steps to ensure the future safety of its workers and is committed to ensuring that such an accident does not happen again.
In imposing a penalty in relation to this offence, general deterrence must be provided for. 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 Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, however it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors. I am satisfied that the changes in management practices and there is evidence before me of those changes.
The approach to be adopted is set out in Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 [(2000)] 49 NSWLR 610 at 644 para [74]: 'Both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be some exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No2) [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.'
The failure to inspect at all, resulting in the offender not noticing the void, is a significant departure from the impositions imposed by the legislation. Had the plywood cover been lifter up, it would have been obvious, but it was not lifted up. Such a simple task could have prevented the incident altogether, and such an oversight led to the worker sustaining serious injuries.

AGGRIVATING FACTORS

The injuries sustained by Kusimweray were significant and the sequalae were also very serious. These are aggravating factors that must be taken into account. See ss 21A (2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The lack of knowledge as to who was on site, or whether the works have been further subcontracted, despite such subcontracting being impermissible according to the contract, does not obviate the need for close scrutiny and monitoring.

MITIGATING FACTORS

The offender pleaded guilty on the second return date. It is entitled to some discount based on the utility of the plea. The appropriate discount is 25%.
The offender has no antecedents and has demonstrated contrition and remorse. The likelihood of a repeated offence is unlikely.
The offender is significantly involved in community support, including sponsoring local projects and charities, and making charitable donations and has done so for many years. I accept that it is of good character.

COSTS

The offender is to pay the offender's costs and disbursements as agreed or assessed.

PENALTY

My orders are: 1. The offender is convicted. 2. The appropriate fine is $100,000.00 but that will be reduced by 25% to reflect a plea of guilty. 3. I impose a fine of $75,000.00. 4. I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. 5. I order the offender to pay the prosecutors costs as agreed or assessed.

Amendments 05 August 2020 - Amended legal representatives details for the Offender 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: 05 August 2020

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