SafeWork NSW v Deicorp Pty Ltd

District Court of NSW|2022-03-25|Before: Mr J

5] NSWDC 151 Texts Cited: The NSW Code of Practice Managing the Risks of Falls at Workplaces (April 2016) The NSW Code of Practice Work Health and Safety Consultation, Co-Operation and Co-Ordination (December 2011) The SafeWork Australia Guide, Labour Hire: Duties of Persons Conducting a Business or Undertaking Category: Principal judgment Parties: SafeWork New South Wales (Prosecutor) Deicorp Pty Ltd (Defendant) Representation: Counsel: Mr M Scott and Mr J Simpson (for the Prosecutor) Mr M Baroni (for the Defendant)

Solicitors: Ms E Derrig, Department of Customer Services (Prosecutor) Mr T Byrne, Barry Nilsson Lawyers (Defendant) File Number(s): 2020/349328 Publication restriction: None

LEGAL APPROACH TO RESOLUTION OF DISPUTED FACTS UPON A SENTENCING HEARING

The standard of proof of contested or disputed facts required in a sentencing hearing depends upon which party is seeking to rely on a particular fact. R v Olbrich [1999] HCA 54; (1999) CLR 270 at [27] the High Court said: 'a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.'
The High Court has since applied this approach in KMC v Director of Public Prosecutions (SA) [2020] HCA 6 at [33] (Kiefel CJ, Bell, Gagelar, Keane, Nettle and Edelman JJ), Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 at [64]-[66] (French CJ, Bell, Keane and Nettle JJ) and Leach v The Queen [2007] HCA 3; (2007) 230 CLR1 at [23] (Gleeson CJ).
Any disputed fact that the prosecutor seeks to rely on must be proved beyond reasonable doubt: Strbak v The Queen [2020] HCA 10 at [32] (Kiefel CJ, Bell, Keane, Nettle and Edleman JJ); R v Pearce [2020] NSWCCA 61 at [69]-[73] (Leeming JA, Rothman J, N Adams J); Alameddine v R [2020] NSWCCA at [46] (Bathurst CJ); Cowling v R [2015] NSWCCA 213 at [13] (Leeming JA); R v AB [2011] NSWCCA 229 at [30] (Johnson J); R v Kirkland [2005] NSWCCA 130 at [13]-[16] (Hunt AJA, Grove and Hall JJ agreeing).
By contrast, any disputed fact which Deicorp seeks to rely upon must be proved on the balance of probabilities: BC v R [2020] NSWCCA 329 (Gleeson JA, Price J, Wright J); Chiang v R [2016] NSWCCA 45 at [13] (Beazley P, Harrison J and R A Hulme J); R v Wang [2020] NSWSC 1335 at [5] (Beech-Jones J).

SUMMARY OF AGREED FACTS

Deicorp is a corporation engaged in the business of providing construction services. It was the principal contractor in the development of two multi-storey buildings (buildings A and B) at 418 to 426 Canterbury Road, Campsie ('the site') as at 15 and 16 January 2019. Each building was a 6 level building and 3 basement levels ('the project').
The history and details of Deicorp's workforce are set out at paragraphs [11] to [15] of the Affidavit of Jason Murray Farrugia ('Mr Farrugia') sworn 14 December 2021.
For the purpose of the construction of the project, Deicorp had engaged, inter alia, the following subcontractors: 1. Form Group to undertake the formwork and associated activities; and 2. Labour Force engaged by Form Group, to supply its labourers for the purposes of undertaking formwork activities.
Form Group had a supervisor on site, Mr Kamil Daaboul ('Mr Daaboul'). Labour Force supplied six workers to Form Group to provide labour for the purpose of stripping and stacking the formwork, which included Mr Mustaqim and Mr Ali Savari ('Mr Savari') as Labour Force's Team Supervisor. Labour Force provided these workers to Form Group and this work was to be done on 15 and 16 January 2019. Mr Albert Younes ('Mr Younes'), Deicorp's supervisor for Building A, inducted all of Labour Force's employees and informed them of Deicorp's site rules and Form Group's Safe Work Method Statement ('SWMS').
Mr Mustaqim was a 28 year old labourer who was contracted by Labour Force and hired to Form Group to perform general labour duties at the site, including carrying out tasks relating to stripping and stacking formwork and associated materials. Mr Mustaqim commenced work at the site on 15 January 2019 and he had previous experience in general labour and held a valid White Card.
The site consisted of two buildings, Buildings A and B, both of which were a six-storey structure with a three-level basement. The ground floor of Building B was comprised of a solid concrete floor. As at 15 January 2019, there were approximately six penetrations across the floor. One of these penetrations ('the Penetration') was a ventilation shaft measuring approximately 0.5m x 1.5m.
Form Group was a registered corporation conducting a business or undertaking that provided concrete construction services (formwork). Deicorp engaged Form Group as a subcontractor under the 'AS2545-1993 Construct Only Subcontract (Amended)' ('the Contract'), to supply all labour, equipment, and material to carry out formwork at the site.
Labour Force was a registered corporation that conducted a business or undertaking providing labour hire to the construction industry, including general and formwork stripping. Form Group engaged Labour Force as a subcontractor to supply labourers to strip and clear works at the site. There was no formal or documented agreement between the parties.
The day before the incident, on 15 January 2019, workers from Dynamic Concrete Pumping Services Pty Ltd ('Dynamic') were engaged in concrete pumping work. Dynamic's supervisor on site at the time was Kerry Avamidis ('Mr Avamidis'). Mr Avamidis stated that on 15 January 2019, he observed the Penetration and that it was secured but was not marked with the word 'PENO' or similar.
While Form Group was not responsible for the work being undertaken by Dynamic, the area was under Form Group's control for the purpose of stripping formwork.
In order to pump concrete in the basement, Dynamic required access for the pump line and such access was gained through the Penetration.

THE INCIDENT

At approximately 7:00am on 16 January 2019, Mr Mustaqim, Mr Savari and four other Labour Force workers arrived at the site and were taken to the ground floor of Building B by Form Group's supervisor, Mr Daaboul. Before he left for Building A, Mr Daaboul directed the workers to strip the formwork, stack the materials, and to call him if they needed anything.
As directed, Mr Mustaqim cleaned and stacked plywood across the floor. On the afternoon of 15 January 2019, an inspection of the ground floor of Building B was conducted by Deicorp's site manager, Luke Fitzgerald, Mr Daaboul and a worker from Labour Force. The inspection was undocumented and no report of any deficiencies in the covering of the six penetrations was made.
The Agreed Facts state as follows: [23] … 'At approximately 1.45 pm Mr Mustaqim picked up a loose piece of plywood, not realising that it was covering a penetration. He fell approximately 4.5m into the penetration void to a concrete slab below, in basement 1 of the building.' … [24] 'There were no warning signs placed around the penetration or physical barriers preventing or restricting access to the penetration.'
At the time of the incident, the area was an exclusion zone under Form Group's control while they carried out formwork stripping, and barriers and signage were in place.
Immediately following the incident, Mr Farrugia, Deicorp's Work Health and Safety Manager, placed a cover with the word 'PENO' over the Penetration.
Mr Mustaqim sustained serious injuries from the fall and was transported to St George Hospital by Ambulance. He sustained multiple pelvic and lumbar fractures including:

Right iliac fracture extending into the joint space with associated widening of the sacroiliac joint;
A longitudinally oriented left sacral ala fracture which extended posteriorly through the left L5-S1 facet joint;
Right side transverse process of L1, L2 and L4; and
The spinous process of L5.

Mr Mustaqim underwent surgery for his injuries and was discharged from hospital on 11 March 2019. SYSTEMS OF WORK BEFORE THE ACCIDENT
Prior to commencing on site, Form Group submitted a SWMS to Deicorp's former Project Manager, Farrokh Farrokhzad ('Mr Farrokhzad'). It was generic and did not specifically address the risks and control measures relevant to penetrations in finished floors such as concrete slabs. The SWMS did identify the risk of falls in openings and identified the following control methods: 'a. Holes or other openings through which a person can fall. Ensure; /. All holes or openings are protected/closed from falls immediately after creating (e.g. platform ladder hatches); a. Ensure the cover is secured to prevent movement; iii. Use signage or other clearly marked hazard alert to identify hazards.'
By accepting and failing to properly review Form Group's SWMS, Deicorp failed to adhere to its own Safety Management Plan.
Deicorp did not have a system in place to ensure that the Site Safety Rules were being followed by subcontractors. Instead, Deicorp relied on subcontractors to inspect their work areas for hazards such as open penetrations and to secure and cover any such penetrations.
In response to a Request to Give Information issued by SafeWork NSW pursuant to s 155 of the Act (notice number 7-373227), Mr Savari stated that he was asked by Deicorp to sign the SWMS but that they did not go through the whole document. He also stated that the control measures described on page 9 of the SWMS in relation to penetrations, were not explained to him. Furthermore, Mr Savari stated that no one spoke to him about penetrations or explained to him what a penetration was and that there were no markings or signs for penetrations, including in the area where Mr Mustaqim fell.
At the time of the incident there were no warning signs placed around the penetration or physical barriers preventing or restricting access to the penetration. The area was an exclusion zone under the control of Form Group (whilst Form Group carried out the stripping of the formwork) at the time of the incident, with barriers and signage in place.
Deicorp had a 'Work Health and Safety Site Plan' ('WHS Plan') with a section entitled 'Safe Work Method Statements'. It stated the following: 'SWMS are developed for all medium to high risk activities in the Risk Assessment. Where possible, the SWMS should be produced by the sub-contractor undertaking the work, however, where this does not occur, Deicorp will be required to develop a SWMS for them. Deicorp Project Manager is responsible for reviewing all generic SWMS submitted by subcontractors at tender. Where job steps or site conditions change from those planned, the Project Manager is responsible for ensuring all SWMS are updated prior to work commencing at the site.'

PENETRATIONS

Deicorp's WHS Plan contained an addendum entitled 'Site Safety Rules Addendum: Formwork (form 3.4)', which stated as follows: 'Prior to the formwork supervisor granting any access to the incomplete deck, they must first ensure that all safety procedures as per their SWMS have been completed as per the following: * All penetrations must be covered with 19mm ply and nailed off with a nail on each corner. * All penetrations must be signed DANGER PENETRATION…'

INDUCTION/TRAINING

Deicorp's WHS Plan also included a section titled 'WHS Induction'. It contained the following: 'Deicorp will ensure nobody commences work on premises until the following is confirmed: (i) They have completed the WHS Induction Training Course for Construction Work in NSW or similar courses in other states in accordance with cross boarder recognition of nationally recognised training; (ii) They have received a Work Activity WHS Induction (including understanding and signing off on SafeWork Method Statements; and (iii) They complete a Site Specific WHS Induction (including understanding and signing off on the company's Site Safety Rules).'
Deicorp's 'Site Induction Form' had been signed by Mr Mustaqim and Mr Savari on 15 January 2019, confirming that the following had been explained to them: 1. Site Safety Rules Explained; 2. Emergency Response Procedure Advised; 3. Evacuation Procedure Advised; 4. Hazardous Materials, Plant and Electrical safety riles Advised; and 5. Relevant SWMS Read, Understood and Signed.

WHS REGULATION

Clause 78(1) of the Work Health and Safety Regulation 2017 (NSW) ('the Regulation') provides that duty holders must manage health and safety risks associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person, including in the vicinity of an opening through which a person could fall.
Clause 79 of the Regulation applies if it is not reasonably practicable for the duty holder to eliminate the risk of a fall in a workplace. This clause requires the duty holder to provide adequate protection against the risk of falls.

GUIDANCE MATERIALS

The NSW Code of Practice Managing the Risks of Falls at Workplaces (April 2016) ('the Code') applies to workplaces with a risk of someone falling, which is reasonably likely to cause injury. It relevantly states the following:

Section 2.1, 'How to Identify Fall Hazards', requires that all locations and tasks, such as those near holes or shafts, must be identified where they may cause injury to workers due to a fall; and
Section 3.2, 'Work on Solid Construction', requires that openings, holes, and penetrations must be made safe immediately after its formation. If a cover is used, it must be made of a material that is strong enough to prevent anything falling through the penetration and be securely fixed to prevent its accidental removal or dislodgement.

The NSW Code of Practice Work Health and Safety Consultation, Co-Operation and Co-Ordination (December 2011) ('the Consultation Code') requires duty holders with a health and safety duty to engage in consultation to plan and manage health and safety. The consultation should include a determination of any risks in the work environment, which workers will be affected by those risks, and how those risks will be controlled.
The SafeWork Australia Guide, Labour Hire: Duties of Persons Conducting a Business or Undertaking ('Labour Hire Guide') provides information to persons conducting a business or undertaking ('PCBUs') involving the supply of workers ('labour hire PBCUs') for another business or undertaking ('host PCBUs') on complying with their health and safety duties under the WHS Act.
Relevantly, the Labour Hire Guide states the following:

Before placing labour hire workers, the labour hire PCBU should consider inter alia:
Providing workers with suitable, adequate and readily understandable WHS induction and training;
Verify and work with the host PCBU to ensure site specific and task specific induction, training and PPE is provided to labour hire workers in a way that is suitable, adequate and readily understandable to them;
Assess the workplace/s for any risks to health and safety, as appropriate. Work with the host PCBU/s to gather enough information to make an assessment, for example, by arranging a workplace visit. Where risks are identified, consult host/s to ensure they are eliminated, or if that is not reasonably practicable, minimised; and
Ensuring workers have the means to identify and take action in an unsafe situation at the host workplace, such as stopping work or bringing it to the attention of the host PCBU/s, a health and safety committee representative or health and safety representative.
Before engaging labour hire workers, the host PCBU should consider, providing the labour hire PCBU/s with detailed information about the nature of the work to be carried out including details of, and where possible supporting material to:
Any known hazards or risks;
Organisational and WHS arrangements, including supervision arrangements and any other organisations responsible for the worker during the arrangement;
Health and safety risks associated with the work;
Any skills, knowledge, licences and qualifications require to safely undertake the work;
Ensuring that the general health and safety information about the work, workplace and work environment has been provided to the worker/s and that the information is provided in a way that is suitable, adequate and readily understandable for the worker/s; and
Eliminate or, if that is not reasonably practicable, minimise the risks in the workplace.

SYSTEMS OF WORK AFTER THE INCIDENT

Following the incident, an Improvement Notice was issued to Deicorp on 17 January 2019. It directed Deicorp to review and revise its control measures for falls through penetrations.
Deicorp complied with this notice, and set up several measures, including: 1. The review and revision of Form Group's SWMS, in consultation with Form Group; 2. The implementation of pre-pour permit and permit to strip formwork permits, which require documented inspections by Deicorp and the Form Group subcontractor's supervisor prior to works proceedings; 3. Conducting a toolbox meeting on 17 January 2019 to alert workers to the incident and the control measures to prevent persons from falling through penetrations; 4. The implementation of daily, documented supervisor inspections; 5. The implementation of daily subcontractor coordination meetings to discuss the following day's activities, high-risk activities, work locations, no-go zones, plant and machinery to be used, and learned lessons to be posted on noticeboards and communicated to supervisors; 6. The development of 'Safety Starts with You' for Deicorp staff and its subcontractors' supervisors; 7. The review and revision of pro forma project risk assessment and site WHS management plan documents to include prompts and controls that correspond with Deicorp's standard procedures; 8. The development of fall from height prevention training with a registered training organisation for all personnel to improve awareness of fall from height preventions and prevention safety; and 9. The development of Deicorp's site safety rules in other languages.

Documentary Evidence

The prosecutor tendered a Prosecution Tender Bundle which was marked Exhibit A.

Kamil Daaboul

Mr Daaboul gave evidence via AVL from his car. This was despite my specific direction that someone from SafeWork be with him to assist with the AVL. It created many difficulties with the manner in which Mr Daaboul gave evidence, and there is no explanation from SafeWork as to why my direction was not complied with.
Despite the difficulties with the AVL, Mr Daaboul gave evidence that he still works for Form Group and his evidence was given in a straightforward manner. He was unable to recall who moved the cover, if there was one, and he could not recall telling anyone to move the cover. There were many different trades on site, so it was possible that one of those workers may have done the inspection.
He was unable to recall when the inspection prior to the incident occurred, but he was adamant that there is always an inspection before the stripping work commences, and there is always an exclusion zone whilst the stripping is being done. He was unable to recall who gave the induction talk and the tool box talk, but again was adamant that there is always an induction, a safety walk, and exclusions zones when the stripping work was being done.
Mr Daaboul struck me as a very honest witness who did his best to recall what happened, and if he could not remember, he said so. I have no hesitation in accepting him as a witness of truth.

Aghil Savari

Mr Savari gave evidence before me with the assistance of an interpreter. He recalled that inductions were done at the site before the work commenced, and that he did the inductions on this occasion. He stated that it took about 15-20 minutes after which Mr Daaboul's foreman showed them the area that they would be stripping.
He was asked the following (T17.9): 'Q. At any time, on either the 15th or the 16th - the 16th being the day of the accident - of January - were you shown by anybody from Deicorp, where the six penetrations were in the floor of the area where you were working? A. I'm going to let you know, I swear to God, if you did not let me know any protection there, I protect my guys first and let the not cover this one, but I never, never, never show any protection for the danger area, or they put any signs or any danger tapes.'
And then further at (T17.29): 'Q. Yes. Mr Mustacarian, the penetration he fell through, do you recall prior to him falling through that, noticing that particular penetration area? A. You mean, like he know? Q. You know, did you see it? A. I told you, if I see, I cover it. I stop the work. I tell, like..(not transcribable).. come cover it, but, like, one team before us they do the stripping under us. Usually when we do the stripping, we see any penetration, we tell them and you cover it. We want to next levels and any walking, no-one falling, but they- someone before us they do the stripping.'
He recalled that no one from Form Group showed him the penetrations, that the induction took less than 30 minutes and they were spoken to in the induction about the use of PPE, helmets and safety shoes. He was firm in his evidence that there was no mention of the penetrations, of scaffolding or safety for working at height.
Mr Savari was asked about whether he was taken through the SWMS, and he denied that he was. He was strenuously cross-examined as to this point and remained firm in his position.
Mr Savari gave compelling evidence that if he had seen the penetrations he would have wanted to get his boys out so that they would not be injured. I have no hesitation in accepting him as a witness of truth.

EVIDENCE FOR THE DEFENDANT

Deicorp tendered the following documents; 1. Site Induction Form No. 36227 relating to Mr Savari; 2. Handwritten statement of Kamil Daaboul dated 17.01.2019; 3. Statement of Albert Joseph Younes dated 13.12.2021 4. Affidavit of Luke Patrick Fitzgerald sworn 10.12.2021; and 5. Affidavit of Jason Farrugia sworn 14.12.2021.

Albert Joseph Younes

Mr Younes gave evidence that he was a self-employed construction worker and as at the date of the incident he was working for Deicorp. He could recall that an inspection was conducted on the 15th, and that the inspection he conducted on the 16th was from the basement looking up. He was an unimpressive witness who seemed at times to be trying to evade answering questions and making it up as he went along
He gave the following evidence (T49-50): 'Q. How long would it have taken you on the morning of the 16th to have inspected the area of the ground floor where the stripping was to occur? Half an hour? 20 minutes? 15 minutes - A. Yeah, probably 15 minutes to 20. Q. It's not that big and area, was it? A. It's-it's not about the area, sorry, sir. Q. But it wouldn't have taken you that long, and you knew that there were six penetrations in that floor? A. Yes, sir. Q. You could have, I suggest to you, in the company of the six people doing the work, conducted an inspection with them of the floor before they started work on the 16th and pointed out where the penetrations were and how they were covered? A. That is possible, yes. Q. Because you knew that there was a known risk in the industry of falling through penetrations that are not properly covered? A. Yes Q. You knew also that the workers that were doing the work were new to the site? It was only their second day on the site? A. Yes.'
He gave further evidence as follows (T.51-52): 'Q. Leaving aside this issue of the bearer, when you saw the penetration cover, which we say you did on the evening of the 15th at 5pm, it was not covered by a sheet of ply, bolted down to the floor, was it? A. Correct. Q. It was not covered by a piece of ply that had the word "PENO" or anything marked on it. A. Correct. Q. You were aware of the site procedures of the employer, Deicorp, that one of the ways that the penetration could be covered is by a piece of ply being bolted, and with the word "penetration" or some other word like that, of warning. You, having seen that on the 15th, what did you do to correct that failure of the penetration cover? A. Nothing. I didn't - nothing was touched. What I looked at is whether the bearer was on top, and it was secured the ply on top of the penetration.'

Luke Patrick Fitzgerald

Mr Fitzgerald is the site manager for Deicorp and was in that role as at the date of the incident. His evidence was predominantly as to the steps that were taken immediately after the incident. He had sworn an affidavit (Exhibit 4) and his oral evidence was substantially similar to the matters he had deposed to. I accept him as a witness of truth.

Jason Murray Farrugia

Mr Farrugia is the WHS Manager for Deicorp. He had sworn an affidavit (Exhibit 5) and to my observation it accorded with his oral evidence. Mr Farrugia attended the scene immediately after the incident and took photographs of the penetration and surrounding circumstances.
Mr Farrugia placed a cover over the penetration and painted the word 'PENO' on the cover. Deicorp has not been charged with an offence under s 39 of the Act, and that is the appropriate course. It was however referred to in submissions.
Mr Farrugia was a very impressive witness. I have no doubt that when he came upon the scene, he was concerned to make-safe the site, and that his actions were directed to that only. I do not accept in any way that this was an attempt to 'disturb' the scene prior to SafeWork inspectors attending the scene. As the WHS officer for Deicorp, he was fulfilling his obligations to eliminate any danger to persons on site.

RESOLUTION OF THE DISPUTED FACTS IN ISSUE

The parties helpfully provided a list of the facts in dispute as detailed below and I will respond to each issue. Form Group and Labour Force
Mr Younes' induction included warnings that there were penetrations in the slabs in areas in which the workers were going to be working and that all penetrations were to remain securely covered at all times. This is contrary to Mr Savari's evidence before me, therefore I do not accept that this has been proven beyond reasonable doubt. Background to the incident
Dynamic's supervisor on Site at the time was Kerry Avamidis ('Mr Avamidis'). Mr Avamidis says that on 15 January 2019, he observed the Penetration and says it was secured but was not marked with the word 'PENO' or similar. Conceded by Deicorp.
He further observed that all other penetrations in the relevant area were secured. Mr Avamidis spoke to Mr Younes to arrange for the Penetration cover to be removed. Younes spoke to Form Group so as to have the Penetration cover removed. Conceded by Deicorp.
Mr Younes says he inspected the area on the morning of 15 January 2019 and the Penetration was covered. I find this to be a fact, as it accords with Mr Younes' evidence before me (T.49).
Mr Younes further says that the Penetration cover was secured because there was a bearer across it which was securely fastened. I find this fact to be true, as it accords with his evidence before me (T.49), and at paragraph [31] of his statement - Exhibit 3.
Mr Younes says he instructed Form Group to provide access to the Penetration for Dynamic. There is insufficient evidence before me to find this as a fact.
Once Dynamic had finished, Mr Younes advised Form Group's site supervisor, Kamil Daaboul (Mr Daaboul), to refasten the Penetration cover. Further, Mr Younes says that once Dynamic had completed the work, Mr Avamidis covered the Penetration but did not secure it and advised Mr Younes accordingly. Mr Daaboul said he did not recall this happening.
According to Mr Younes, he advised Mr Daaboul to secure the Penetration. At some point after, Mr Younes reinspected the Penetration and he was satisfied that it had been secured as it was before. There is insufficient evidence before me to make this finding of fact.
A further inspection of the ground floor of Building B was conducted by Deicorp site manager Jason Fitzgerald, Form Group supervisor Kamil Daaboul as well as a worker from Labour Force. The inspection was undocumented and no report of any deficiencies in the covering of the six penetrations was made. Conceded by Deicorp. The Incident
Mr Daaboul says that he had checked the penetrations in the relevant work area before ceasing work. He further says that on the day of the incident, the workers were informed via pre-start/toolbox talk to be aware of "penetrations". He also says that Form Group would secure penetrations created in the formwork as part of their formwork activities. This is consistent with their contractual obligations. Withdrawn - defendant no longer presses for this fact.
The penetration was covered by an unmarked, loose piece of plywood. I accept that this is true and make that finding of fact.
At the time of the incident there was no adequate cover or fall protection device (such as guardrails or other physical barriers) in place to prevent the risk of workers falling through the penetration. Conceded by Deicorp.
The penetration was covered by an unmarked, loose piece of plywood. I find that this must be correct as at the time of the incident, otherwise Mr Mustaqim would not have fallen. This is also contrary to the Agreed Facts at [23].
However, there was a bearer across it which was securely fastened. Deicorp concedes this. SWMS
Prior to commencing on site, Form Group submitted a SWMS to Deicorp's former Project Manager, Farrokh Farrokhzad ('Mr Farrokhzad'). The SWMS was generic and did not specifically address the risks and control measures relevant to penetrations in finished floors such as concrete slabs. Deicorp concedes that it was a generic SWMS, but that the hazard was identified at pages 11, 12 and 13 of the SWMS. (see Prosecution Tender Bundle Tab 8). Mr Farrugia's evidence was that he saw no bearer. There were six workers on site to do the stripping, and the SWMS did not deal specifically with the penetrations. The only evidence about the bearer came from Mr Younes, who I do not accept as a witness of truth. Furthermore, the SWMS checklist (Tab 8 of Exhibit A) was signed off two days after the incident by Mr Fitzgerald.
The Form Group SWMS identified the risk of falls in openings. The control measures identified as follows: 'a. Holes or other openings through which a person can fall. Ensure; /. All holes or openings are protected/closed from falls immediately after creating (e.g. platform ladder hatches); a. Ensure the cover is secured to prevent movement; iii. Use signage or other clearly marked hazard alert to identify hazards.'
Further, the SWMS identified and dealt with the risk of falling through penetrations. Having had regard to the document, I accept this to be correct.
Deicorp (and Subcontractor) supervisors monitored the site through daily inspections, WHS committee inspections, third party inspections and issuing of non-conforming notices where any failures were detected. There is no evidence before me that would satisfy me as to this issue, however it is not relevant either way. Induction/training
As noted at paragraph 1, Mr Younes' inductions included warnings that there were penetrations in the slabs in areas in which the workers were going to be working that all penetrations were to remain securely covered at all times. There is a conflict between Mr Younes' evidence and Mr Daaboul's evidence, and I prefer the evidence of Mr Daaboul (T.9 -10), as I find that he was a very frank and honest witness, and I do not accept Mr Younes as a witness of truth. Thus, I find that Mr Younes did not do an inspection to show the new workers the risk, nor did the induction include warnings with regard to the penetrations.
In response to a Request to Give Information issued by SafeWork NSW pursuant to s 155 of the Act (notice number 7-373227), Mr Savari stated that he was asked by Deicorp to sign the SWMS but that they did not go through the whole document. He also stated that the control measures described on page 9 of the SWMS in relation to penetrations, were not explained to him. Furthermore, Mr Savari stated that no one spoke to him about penetrations or explained to him what a penetration was and that there was no markings or signs for penetrations, including the area where Mr Mustaqim fell. I note that Mr Savari's statement was not made pursuant to s 155 of the Act, and that he made the statement of his own volition. However, Mr Savari gave this evidence before me, and it accords with the statement (Tab 10 of Exhibit A). Systems of Work Before the Incident - Form Group
As stated above, the SWMS relied upon by Form Group identified the risk of falls in openings. I note that Deicorp does not concede that they relied on the sub-contractor, and this fact has been dealt with above.
As noted above, Mr Daaboul says that he had checked the penetrations in the relevant work area before ceasing work. There is insufficient evidence before me to allow me to make this finding.
By accepting, and failing to properly review Form Group's SWMS, Deicorp failed to adhere to its own Safety Management Plan. I find that the failure was a systems failure, in that Deicorp did not check its own work practices. Had 'PENO' been painted on any cover, workers may have been put on notice of the danger. Penetrations
Deicorp did not have a system in place to ensure that the Site Safety Rules were being followed by subcontractors. Instead, Deicorp relied on subcontractors to inspect their work areas for hazards such as open penetrations and to secure and cover any such penetrations. Deicorp concedes the first sentence, and not the second. I find that Mr Younes did not do an inspection so as to then highlight the risks to new workers on the site. Further, Deicorp did not check that its own work procedures were being followed. This was a management failure, in that Deicorp did not comply with its own systems.
Form Group supervisor Mr Daaboul, who was responsible for supervising the workers, did not conduct an inspection of the ground floor of building B on the morning of 16 January 2019 to check that all penetrations had been adequately covered and marked, prior to allowing Labour Force workers to commence working on the floor. This is conceded by Deicorp.
Mr Savari reported that he was not warned about the presence of penetrations and that he and his workers were left to work alone on the ground floor of building B, which had no signs or warnings about penetrations or marked exclusion zones. Deicorp concedes that he was not warned about the presence of the penetration but not the balance of the paragraph. There is a conflict between the witnesses as to what was done in the induction. Therefore, I am not satisfied that the prosecutor has proven the balance of the paragraph beyond reasonable doubt.

DISCUSSION

It is common ground that the Labour Force labourers were, on 15 and 16 January 2019, given the task of stripping and stacking formwork and associated materials on the ground level of Building B. The ground floor upon which the work was to be performed had six penetrations.
Mr Mustaqim suffered severe injuries as a consequence of the fall, and the stated mechanism of injury is consistent with the description contained in Deicorp's Incident Investigation Report (Tab 7 of Exhibit A).
The SWMS utilised by Form Group at the time is at Tab 8 in Exhibit A. I accept that the document is of a generic nature, and whilst it refers to the issue of the penetration, it does so in the context of persons being engaged in scaffolding work. There was no scaffold at the relevant area on site as at the date of the incident.

RISK

The risk is described in Annexure A to the Summons in the following terms: 'The risk was the risk of workers, in particular Mr Mustaqim, suffering death or serious injury as a result of falling through a penetrations in the ground floor of Building B to the concrete basement floor below.'

SENTENCING

The penalty to be imposed must be one which will give overall effect to the policy of the 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 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 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 duty of Deicorp requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and Deicorp 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 primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5.
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.
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.
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]. 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 Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). Justice Basten at [34], under the heading 'Assessment of Risk' said: '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).
Deicorp's duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The risk of a person being injured whilst working at height in the vicinity of an unguarded or unmarked penetration, of which they had not been made aware, was both obvious and serious. The risk that manifested was one that was similarly well known and obvious. It was a risk of serious injury or death.
The mechanism for overcoming the risk was simple and straightforward. At it's simplest it could have been obviated by the process of an inspection being undertaken by Deicorp of the area where work was to be performed on the morning of 16 January 2019 before that work commenced to ensure that all six penetrations were appropriately covered by fixed pieces or ply and marked 'PENO' or some appropriate warning. In other words, an inspection before work was performed to ensure that Deicorp's policies regarding the covering of penetrations had been given effect to.
Employers must take steps to protect workers against risks created by inadvertent conduct of workers in the course of their work, if it is reasonably practicable to do so: SafeWork NSW v Poletti Corporation [2019] NSWDC 491 at [88].
The gravity of the risk is demonstrated by the seriousness of the injuries suffered by Mr Mustaqim, which are detailed at paragraph [25].
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 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.'
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 Act is considered in the context of the graduation of offences contained in ss 31-32 of the Act: Nash v Silver City at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

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: Ibid [34];
The availability of steps to eliminate or minimise the risk: Ibid [34];
Whether those steps are complex, burdensome or mildly inconvenient and if mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] & [53];
Whether the risk was known or ought reasonably have been known to or identified by the offender;
Whether the risk was an obvious or clear one; and
The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

Having regard to the seriousness of the risk and the straightforward steps that could have been taken to overcome that risk, as detailed in the Amended Summons, I am of the view that this offence objectively falls within the middle range of seriousness.

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 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 Deicorp. 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 building and construction industry.
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, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.
There was guidance material readily available to Deicorp. This risk was known to the construction industry, and the number of deaths and serious injuries as a consequence of workers falling from heights is not abating. Employers are not getting the message that this conduct is unacceptable.
In relation to specific deterrence, the attitude of Deicorp 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 of Deicorp to reoffend. I note that Deicorp continues to perform the same work as it did when the incident occurred.
Mr Farrugia's evidence, in his affidavit and before me in Court, sets out the manner in which he discharges his duties in consultation with Deicorp's managing director. I accept that the changes that Mr Farrugia has made since commencing his employment with Deicorp are good steps towards a safe workplace for all workers.
Deicorp concedes its failures in relation to the risk of falling through penetrations, and I note that this has become a particular focus point for Deicorp. Of particular importance, I note, is the development of the 'penetrations register' and a 'pre pour permit', which must be signed off to indicate that all penetrations have been fitted with steel mesh prior to the pour. This is a significant improvement. I further note that Deicorp's systems do not allow stripping to occur unless the form workers have sought a permit to do so which is designed to ensure that penetrations are covered.
Mr Farrugia's evidence demonstrates that since his commencement (2 days prior to the incident), he has created monthly reports which are prepared for Deicorp's managing director outlining, inter alia, details of audits that he has undertaken in that month, and all incidents that may have occurred.
I accept that the prospects of rehabilitation of Deicorp are good, but the need for an element of specific deterrence is still necessary in these circumstances.
Deicorp has two previous convictions. The first incident was in January 2016 when the injured worker performing stripping fell through a gap between the permitter scaffolding and a floor slab.
The second incident occurred in October 2016 when the injured worker fell through a penetration between the edge of a concrete slab and the scaffolding.
Prior convictions are pertinent to deciding where, within the boundaries set by the objective circumstances, a sentence should lie: R v McNaughton (2006) 66 NSWLR 566 at [26].
I accept however, that prior convictions should not be taken into account in such a way to punish the offender again for those earlier matters, and that the previous convictions should not influence the penalty that I may impose as an aggravating factor. However, I will not allow Deicorp any leniency as a consequence of these previous offences.
I accept that the principle of proportionality is relevant determining penalties in criminal proceedings, as noted in Veen v The Queen (No. 2) [1988] 164 CLR465 at [13]: 'However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case.'

AGGRAVATING FACTORS

The injury, harm and loss caused by this offence was substantial: s 21A(2)(g) of the Sentencing Act. For an aggravating factor to be established, I must be satisfied beyond a 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]. It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. In this circumstance, Mr Mustaqim was tragically, very seriously, injured.

MITIGATING FACTORS

Deicorp co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.
Deicorp entered a plea of guilty on 21 June 2021, and as such this early plea is a mitigating factor: s 21A(3)(k) of the Sentencing Act.
Mr Farrugia's affidavit discloses the extensive community work that Deicorp does and notes the charitable donations it has made.
I accept that Deicorp is of good character: s 21A(3)(f) of the Sentencing Act.
Deicorp has made a number of significant changes to its safe systems of work since the incident, and I accept is committed to do so. I accept that Deicorp has reasonable prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.
Section 21A(3)(i) of the Sentencing Act provides that remorse may be taken into account as a mitigating factor in recognition of the remorse shown by Deicorp, and this has been demonstrated by Mr Farrugia's affidavit (Exhibit 5) and Mr Fitzgerald's affidavit (Exhibit 4). I accept that Deicorp has shown remorse and contrition and as such is entitled to leniency on that basis.
The prosecutor submits that Deicorp should not be entitled to anything more than a discount of 10%-15% for the early guilty plea as the matter has taken two days, with evidence from 5 witnesses, and that the scene was not as it was when the SafeWork investigators turned up.
Deicorp concedes that 20% is the appropriate deduction.
I again say that in my view Mr Farrugia took the appropriate course to ensure the safety of all persons on the site, and whilst that may have (to some extent) prolonged the investigation, is it not sufficient for me to depart from a discount of 20% as conceded by the defendant for the utilitarian value of the plea in accordance with R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act.
The Court is entitled to take into account the fact that Deicorp will be liable to pay the prosecutor's costs when considering any monetary penalty to be imposed on defendants, particularly in circumstances where there is evidence of a limited capacity to pay a fine. The costs payable to the prosecutor are an important aspect of the punishment of Deicorp. The Court can also have regard to Deicorp's own costs that it will have to bear as a consequence of a breach of the Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78]. I have also taken into account that Deicorp will be liable for the prosecutor's costs as part of the overall penalty imposed.
I note Deicorp does not make any application under s 6 of the Fines Act 1996 (NSW).
The appropriate fine for Deicorp is $500,000.00 and it is entitled to a discount of 20% for the early plea.

PENALTY

I make the following orders: 1. The defendant is convicted. 2. The appropriate fine is $500,000.00 and that will be reduced by 20% for the utilitarian value of the plea. 3. Accordingly, I order Deicorp to pay a fine of $400,000.00. 4. 50% of the fine imposed is to be paid to the prosecutor, pursuant to s133(2) of the Fines Act 1996 (NSW). 5. Deicorp is to pay the prosecutor's costs, agreed in the sum of $47,000.00.

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: 07 June 2022

Work Health and Safety Regulation 2017(NSW)

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Judgment (27 paragraphs)

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Cases Cited (39)