SafeWork NSW v Dynamic Formwork Group Pty Ltd

District Court of NSW|2022-02-07

Solicitors: SafeWork NSW (Prosecutor) Reuben George Lawyers (Defendant) File Number(s): 2021/00033235

The Risk

The risk described in par 17 of the Summons is as follows: "The risk was the risk of workers, in particular Mr Edawy suffering death or serious injury arising from falling from height from one level to another level at the site."

Reasonably Practicable Measures

Paragraph 18 of the Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "18. The defendant failed to ensure so far as is reasonably practicable the health and safety of workers, in particular Mr Edawy in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate, the risk: a) Verifying that Pinnacle provided a safe means of access and egress between levels 7 and 8, such as temporary access scaffold stairs and that such means of access and egress remained available for use by workers undertaking formwork at the site; b) Verifying that Pinnacle ensured the exposed and/or uncapped vertical steel reo bar(s) were securely covered with reo bar cap(s); c) Including a requirement in its Safe Work Method Statement that: (i) only temporary access scaffold stairs were to be used as the means of access and egress between formwork decks and lower levels; (ii) ladders were not to be used for access and egress between formwork decks and lower levels; d) Providing adequate supervision to ensure workers did not access or depart from the formwork deck other than via a safe means of access and egress; e) Providing, or verifying that Pinnacle provided adequate instruction and training to workers including Mr Edawy by: (i) conducting an adequate site specific induction; (ii) informing workers of the presence of the risk of fall from height; (iii) instructing workers on safe means of access from formwork decks, in particular the use of temporary access scaffold stairs; (iv) instructing workers on the prohibition on the use of ladders for access and egress between formwork decks and lower levels."

Background

The parties presented an Agreed Statement of Facts and this material is summarised below.
Dynamic Formwork conducted a business or undertaking involving formwork and falsework.
Mr Tarek Hbouss was the director of Dynamic Formwork.
Pinnacle Constructions Group Pty Ltd ("Pinnacle Constructions") was the principal contractor for the project, "Merindah Central Coast", located at 25 Mann Street, Gosford ("the site"). Pinnacle Constructions was to construct a 15-storey residential building with 140 units.
Pinnacle Constructions entered into a subcontract ("Dynamic Subcontract") for Dynamic Formwork to design, supply and install formwork and falsework at the site. The value of the works for the Dynamic Subcontract was $3,630,000 including GST. Pinnacle Constructions had worked with Dynamic Formwork on previous jobs prior to this engagement. Paragraph 1.14 of the Dynamic Subcontract provided that Dynamic Formwork must "comply with all WHS and workplace safety policies and procedures".
Dynamic Formwork further subcontracted AMS Formwork, a formwork labour hire company, to provide workers for the assembly of the falsework and formwork on site.
Pinnacle Constructions entered into a subcontract with 21st Century Building Services Pty Ltd ("21st Century") to erect scaffolding at the site. This included the installation of scaffold stair access to each level of the building as it was constructed.
Pinnacle Constructions is in liquidation and was not prosecuted.

Dynamic Formwork Employees

Mr Maneh Hbouss was employed by Dynamic Formwork as a supervisor and at the time of the incident had been in this position for three years. He had prior experience in formwork and in the industry. He was responsible for overall supervision, ensuring that AMS Formwork formworkers received resources, communicating with AMS Formwork formworkers, organising subcontractors and developing the system of work for erecting formwork at the site in consultation with AMS Formwork and Pinnacle Constructions.
Both Mr Tarek Hbouss and Mr Maneh Hbouss were jointly responsible for Dynamic Formwork's work health and safety.
Mr Mahoud Hammoud was employed by Dynamic Formwork as a foreman supervisor. He would undertake the role of a supervisor if Mr Maneh Hbouss was unavailable. Mr Hammoud had limited English proficiency and could not read English.
Mr Mohamed Gamel Edawy was employed as a formworker by AMS Formwork and was responsible for undertaking tasks such as erecting formwork. Mr Edawy was engaged by AMS Formwork to undertake formwork for Dynamic Formwork. Mr Edawy began employment with AMS Formwork and work at the site on 17 December 2018. Mr Edawy was supervised by Mr Hbouss or Mr Hammoud at the site. He was paid cash in hand. He had limited English proficiency and Mr Tarek Hbouss was aware of this.

The Site Prior to the Incident

Dynamic Formwork commenced work at the site in August/September 2019.
Overall there were 60-80 workers on site. Dynamic Formwork had 10-15 workers on site.
21st Century erected scaffold around the outside perimeter of the building at the site to enable the subcontractors to perform work at heights safely, including undertaking formwork and carpentry related tasks on various levels. Workers engaged by 21st Century attended the site regularly to extend and modify the scaffolding.
Mr Mahoud Hbouss was on leave up until 17 January 2019. While he was on leave, Mr Hammoud was supervising the job on behalf of Dynamic Formwork.
Mr Mahoud Hbouss attended the site one or two days a week in the period prior to the incident.
On 4 February 2019, the concrete pour on level 7 of the site had been completed.
On 4 February 2019, workers engaged by 21st Century attended at the site to extend the scaffolding and the scaffold stairs from the level of the concrete slab on level 7 and up to the formwork deck being constructed on level 8. The perimeter scaffolding where scaffold stairs were supposed to have been installed was at the back of the building at the site.

The Incident

On 5 February 2019, Pinnacle Constructions was forming up the deck to pour concrete at the site. Dynamic Formwork was undertaking formwork and carpentry related tasks on levels 7 and 8, including erection of formwork on the slab on level 8. AMS Formwork workers were undertaking formwork on behalf of Dynamic Formwork on levels 7 and 8.
Falsework frames, timber bearers and timber joists had been partially assembled on the concrete floor of level 7.
The level 8 plywood deck sat at 2.8 metres above the concrete floor of the level 7 construction.
On the morning of 5 February 2019, scaffolding stairs were used as access and egress between levels 7 and 8. These stairs were at the back of the building.
Mr Bechara, the Director and Project Manager for Pinnacle Constructions, was at the site on the morning of 5 February 2019. Mr Bechara left around midday and was not present at the time of the incident.
The Pinnacle Constructions Site Manager, Mr Tannous, was on site in the morning. The Site Supervisor for Pinnacle Constructions, Mr Cairns, took over responsibility for supervision of the works at the site after Mr Tannous left.
The Site Supervisor for Dynamic Formwork, Mr Mahoud Hbouss, was not present at the site on the day of the incident.
The Dynamic Formwork Foreman Supervisor, Mr Hammoud was responsible for supervising Dynamic Formwork's workers on the day of the incident. Mr Hammoud was also responsible for supervising Mr Edawy. Mr Hammoud left the site prior to the incident at 2.40 pm.
No-one from Dynamic Formwork replaced Mr Hammoud as supervisor after he had left.
Mr Edawy commenced work at the site as a formworker at 12.00pm. He worked on the level 8 deck at the site to erect the deck until 3.00pm. Mr Edawy accessed the level 8 deck by using the perimeter scaffold staircase at the back of the building.
At 3.00pm, Mr Edawy had finished his work and intended to proceed down to the concrete slab on level 7. Mr Edawy intended to access the perimeter scaffold staircase at the back of the building to enable him to go down to level 7. However, he observed that the scaffold staircase at that time only went to the level of the concrete slab at level 7 and did not proceed up to the level 8 formwork deck.
As a result, Mr Edawy went to the leading edge of the formwork deck where a portable alloy ladder was positioned. The feet of the ladder were on the level 7 concrete floor which was 2.8 metres below the deck's leading edge.
As Mr Edawy approached the location of the ladder, he stepped on a bearer that was located near the leading edge of the partially constructed formwork deck on level 8. The weight of Mr Edawy's foot on the bearer caused it to see-saw up. It became dislodged and fell. Mr Edawy fell from the level 8 formwork deck to the concrete slab on level 7 below.
Mr Edawy's right leg was impaled onto a vertical steel reo bar that was located in the concrete slab on level 7 running parallel with the leading edge of the formwork deck on level 8. There was no capping on this reo bar.
NSW Police and paramedics arrived at the site after the incident. The paramedics had to cut the reo bar to release Mr Edawy and then transported him to Gosford Hospital to receive treatment.

SafeWork Inspection

Following the incident, SafeWork NSW Inspector Christopher Kearney conducted a site inspection and made the following observations: 1. On level 7, formwork frames were located on the floor and a formwork deck was partially constructed in preparation for the level 8 concrete floor. 2. A scaffold working deck was located 700mm below the level 8 formwork deck however the scaffold staircase was incomplete, and while it went up to the level of the scaffold deck at level 7 it did not extend up to the level 8 formwork deck. 3. Along the edge of the formwork deck under construction, approximately half away across the level 7 floor, a length of vertical reo bar located at the eastern end of a wall truck running parallel with the leading edge of the formwork deck above had been cut and blood was observed on the ground around the cut reo bar. 4. A ladder on level 7 near the edge of the formwork deck was lying on the ground. 5. The level 8 timber framework deck, in the area above the cut reo bar, was constructed 2.8 metres in height above the level 7 floor and had a leading edge running in an east/west orientation with no timber joists, catch deck or edge protection fitted along this section. 6. There were a significant number of exposed reo-bars without caps on level 7.

Fall protection

Pursuant to cl 78 of the Work Health and Safety Regulation 2017 ("the Regulation") a person conducting a business or undertaking ("PCBU") must manage, in accordance with Part 3.1, risks to health and safety 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. Management of this risk by a PCBU in accordance with Part 3.1 of the Regulation includes requirements to: 1. Identify reasonably foreseeable hazards that could give rise to risks of health and safety (cl 34). 2. Eliminate the risk to health and safety so far as is reasonably practicable, and if not reasonably practicable to do so, minimise the risk so far as is reasonably practicable by implementing control measures in accordance with the hierarchy of risk controls (cll 35 and 36). 3. Maintain the implemented control measure so that it remains effective (cl 37). 4. Review and, if necessary, revise all risk control measures (cl 38).
Pursuant to cl 291 of the Regulation, "high risk construction work" is defined as construction work that involves a risk of a person falling more than two metres.
The SafeWork NSW "Managing the Risks of Falls at Workplaces" ("Falls Code of Practice") dated April 2016 requires the provision of a safe means of access to and exit from a workplace.

Reo Bars

The WorkCover Formwork Code of Practice 1998 ("1998 Code") was developed based on previous occupational health and safety legislation. It is still current and can be relied on to instruct duty holders on how to meet their WHS obligations in relation to falls prevention onto exposed vertical steel reo bars at the workplace.
Section 4.1 of the 1998 Code provides that a system to prevent or arrest falls should be provided, irrespective of height, if the risk assessment identifies a hazardous situation, such as where the surface condition onto which a person may fall would cause serious injuries, for example, a fall onto reinforced steel starter bars, building materials (bricks, timber, tiles etc).
The SafeWork NSW "Housing Industry Site Safety Pack" 2016 ("SafeWork Safety Pack") was available on the SafeWork NSW website at the time of the incident. The Pack contained a form titled "Site Specific Risk Assessment" ("WHS Form 04"). One of the questions required to be addressed in conducting a risk assessment is whether "there is a risk of injury due to impaling hazards not being appropriately protected in the work area? (e.g star pickets, reo bars, stacked pallet stack)".

Safe Work Method Statement

Pursuant to cl 299 of the Regulation, a PCBU carrying out high risk construction work must, before high risk construction work commences, ensure that a Safe Work Method Statement ("SWMS") for the proposed work is prepared or has already been prepared by another person.
Section 3.2 of the 1998 Code outlines planning practices a principal contractor should (in consultation with its contractor) employ before commencing formwork on a construction site. This includes an assessment of the risks involved in carrying out the work and identifying the most appropriate methods to control any risk of injury.
Section 3.3 of the 1998 Code outlines planning practices a contractor should carry out in addition to those in consultation with the principal contractor, including: 1. An assessment of the risk in carrying out the work. 2. Identifying the most appropriate methods of preventing the risk of injury including falls, slips and trips. 3. Providing a documented work method statement describing the sequence of work tasks and activities and how the work is to be done safely. This work statement should take into account an assessment of the risk involved in carrying out the work. 4. Ensuring that the sequence of work tasks is designed to increase safety.
Section 4 of the 1998 Code provides that the principal contractor and contractor have an obligation under the Occupational Health and Safety Act 1983 (NSW) to provide and maintain a workplace that is safe and without risks to health for employees in relation to those matters over which there is control. Measures to prevent persons working at heights from falling should be provided and maintained as part of a safe system of work.

Information, Instruction and Supervision

In relation to information and instruction, the Falls Code of Practice provides in s 2.3: 1. Provide information, training and instruction to workers, including procedures for emergency and rescue. You should also cover the type of control measures used to prevent falls. 2. Provide supervision by ensuring that workers exposed to a risk of a fall are adequately supervised.

Dynamic Formwork's SWMS

Dynamic Formwork had a SWMS relating to formwork in place at the time of the incident.
The SWMS did not include a requirement that: 1. Only temporary access scaffold stairs were to be used as the means of access and egress between formwork decks and lower levels. 2. Ladders were not to be used for access and egress between formwork decks and lower levels.
It did not adequately address the risk of falls at the site. In relation to the job step described as "installation of formwork", the only hazards identified in the SWMS, were "back and shoulder injuries" and "injury from nail gun".

Access and Egress

Pinnacle Constructions stated that they relied on scaffolders to provide a safe working ladder on site to access and egress from level 8 to level 7.
Mr Edawy stated that there were no stairs in place at the time he was planning to egress from the level 8 formwork deck as the scaffold stairs had been removed.
Dynamic Formwork failed to verify that Pinnacle Constructions provided a safe means of access and egress between levels 7 and 8, such as temporary access scaffold stairs, and that such means of access and egress remained available for use by workers undertaking formwork at the site.
Prior to the incident: 1. Mr Hussain (a 21st Century employee) stated that he had observed workers using a ladder during the installation of formwork. 2. Mr Dos Santos (Pinnacle employee) stated that he had previously used a ladder similarly to access and leave the deck. 3. Mr Follett (Pinnacle employee) stated that he had observed workers using the ladder along the leading edge to get up and down the deck. 4. Ms Fretias (Pinnacle employee) stated that it was normal for workers to use the ladder to go up and down the deck.

Reo Bars

The management of caps on reo bars was the responsibility of Pinnacle Constructions.
Mr Dos Santos stated that some of the exposed vertical reo bars on level 7 were not capped at the time of the incident.

Training and Induction

In the Pinnacle Constructions Site Induction Form for Mr Edawy, all topics were ticked except for site specific safety documents, polices and plans.
Mr Tannous (Pinnacle Site Manager) was responsible for signing off on all inductions and he signed off on Mr Edawy's induction.
Mr Edawy stated that he did not receive any other training regarding the safety rules on the site.
Mr Cairns (Pinnacle Site Manager) stated that the induction process was mainly concerned with amenities.
Dynamic Formwork failed to provide or verify that Pinnacle Constructions provided adequate instruction and training to workers including Mr Edawy by: 1. Conducting an adequate site-specific induction. 2. Informing workers of the presence of the risk of fall from height. 3. Instructing workers on safe means of access from formwork decks, in particular the use of temporary access scaffold stairs. 4. Instructing workers on the prohibition on the use of ladders for access and egress between formwork decks and lower levels.
Mr Edawy, an Arabic speaker, stated that his induction for the site took approximately five minutes. It was performed by Ms Fretias but she did not speak Arabic and just ticked the boxes. She had stated to him that the most important thing was his name and details of his next of kin. He did not read the instructions on the document and no one explained the contents to him.

Supervision

Dynamic Formwork was responsible for supervising the formwork job.
At the time of the incident, Dynamic Formwork did not have a supervisor on site.

Systems of Work Following the Incident

Following the incident, Pinnacle Constructions developed a new SWMS which addressed the steps to be taken to control the risks associated with the installation of formwork.

Evidence for the Defendant

Mr Tarek Hbouss swore two affidavits on 20 December 2021 (DX 1 and DX 2) which are summarised below.

Personal Background

Mr Hbouss was born in Lebanon in 1975. He has three children aged 21, 16 and 18 months old. He has worked in the building and construction industry for 25 years and has extensive industry knowledge and experience regarding formwork and general construction.

Background to Dynamic Formwork

Mr Tarek Hbouss is the sole director of Dynamic Formwork.
Dynamic Formwork's business is primarily concerned with providing formwork services in the building and construction industry throughout the Greater Sydney area. Dynamic Formwork has been trading as a formwork company for four years.
Dynamic Formwork employs three full-time and part-time employees, including Mr Tarek Hbouss, Mr Manel Hbouss and Mr Ahmed Nabail. The positions of Safety Manager, Construction Manager and Project Manager are shared by all three employees.
Dynamic Formwork engages subcontractors on a job-to-job basis, being one or two subcontractors for each job site.

Acknowledgment

Mr Tarek Hbouss acknowledges Dynamic Formwork's failures in relation to the circumstances of the incident. He accepts that Dynamic Formwork's failure to have safe systems of work in place exposed Mr Edawy to the risk from which he ultimately suffered serious injury.
Mr Tarek Hbouss stated that he has sought to learn from the incident and has implemented appropriate changes to minimise the risk of any subsequent workplace incident.

Apology

Mr Tarek Hbouss stated: "On behalf of the Defendant, and myself personally, I wish to express remorse that this Incident occurred, and that Mr Edawy suffered injuries. On behalf of the Defendant, and myself personally, I accept the responsibility for the failures that led to Mr Edawy being exposed to the risk that resulted in the injuries and acknowledge the impact that it had on Mr Edawy."
Following the incident, Mr Tarek Hbouss and his brother Mr Maneh Hbouss visited Mr Edawy in Gosford Hospital on a couple of occasions to check on his wellbeing. During these visits Mr Tarek Hbouss observed that Mr Edawy had recovered from his injury and appeared to be in good health.
In the following months, Mr Tarek Hbouss and Mr Maneh Hbouss met Mr Edawy for coffee to catch up and maintain contact. They continue to check in on Mr Edawy's wellbeing by telephone calls.

Compliance History

Dynamic Formwork has no previous convictions.
Mr Tarek Hbouss has always tried to take proactive steps to ensure Dynamic Formwork's compliance with work health and safety obligations under the Act.
Notwithstanding the small size of Dynamic Formwork and its financial constraints, Mr Tarek Hbouss has never set a limit on spending with respect to safety.

Systems of Work Prior to the Incident

On 5 July 2018 Dynamic Formwork prepared a SWMS in relation to the task of formwork for the project site ("the Original SWMS").
Prior to commencing work at the site all workers engaged by Dynamic Formwork were provided with a copy of the Original SWMS and its contents were verbally explained to the workers by Mr Tarek Hbouss and Mr Maneh Hbouss.
Dynamic Formwork's workers indicated that they understood the contents of the Original SWMS by signing the consultation and sign off section at page 10 of that document.
On 5 July 2018 the Original SWMS was provided to the principal contractor, Pinnacle Constructions. Dynamic Formwork did not receive any feedback from Pinnacle Constructions in relation to the Original SWMS.
Mr Tarek Hbouss' review of the Original SWMS identified the following hazards at the site: 1. Possible work at height. 2. Slips, trips and falls.
Mr Tarek Hbouss' review of the Original SWMS identified the following control measures in respect of those hazards: "a. If working at heights - ... Scaffold is properly erected for work and certified, Ensure fall protection measures are in place; b. signs, barricades or secure fencing are to be used to identify the work area;"
Attached to the Original SWMS were supplementary work health and safety documents ("Supplementary SWMSs") including SWMSs that related to the following: 1. Formwork General Site Safety. 2. Erecting and Stripping Formwork Slabs and Beams. 3. Heights.

Immediate Actions Taken Following the Incident

Immediately following the incident, Mr Tarek Hbouss ensured that the Dynamic Formwork completed a register of injuries form recording the details of the incident.
Mr Tarek Hbouss also took steps to improve Dynamic Formwork's health and safety systems. Dynamic Formwork undertook an extensive review of its systems generally and particularly in relation to its primary business of providing formwork services.
In the days following the incident, Dynamic Formwork prepared an updated SWMS, being a "WHS Form 05 SafeWork Method Statement" ("the Updated SWMS") having regard to the specific hazards at the site and the circumstances that surrounded Mr Edawy's injury.
On 8 February 2019, Dynamic Formwork provided the Updated SWMS to Pinnacle Constructions.
Mr Tarek Hbouss' review of the Updated SWMS identified the following revised hazards: 1. Falls. 2. Falling objects. 3. Electrical hazards. 4. Slips/trips. 5. Cuts/lacerations. 6. Eye injuries from cutting timber. 7. Puncture wounds from reo. 8. Formwork collapse.
Mr Tarek Hbouss' review of the Updated SWMS identified the following control measures in respect of those hazards: "1. Before commencing work on the concrete slab, the formwork surveyor to ensure: a) All access is safe and bar caps are installed. b) All scaffold is finished leaving no possible fall hazards or gaps where things can be dropped off the building. c) All penetrations on slab are adequately covered i.e. mesh built into concrete. 5. To minimise any fall hazards the formwork supervisor should ensure only experienced carpenter/form workers are allowed to work at the leading/live edge. No apprentices or labourers should be permitted in this area. 6. When an unavoidable penetration like a stairwell is reached, handrails need to be installed. This is done safely by first placing joists across the opening then erecting the handrail. This ensures that the worker erecting the handrail cannot fall. This task only be undertaken by experienced workers."
Mr Tarek Hbouss' review of the Updated SWMS identified the following further instructions to be provided to workers on site: "1. All workers must be inducted on site. 2. No workers can undertake formwork duties until they have been trained in this safe work method statement. 4. All workers must follow instructions from the formwork supervisor. 6. If work can't be done as per the above instructions, you must immediately stop work and advice the formwork supervisor. 7. Formwork supervisor to monitor compliance with this safe work method statement."
Attached to the Updated SWMS were supplementary work health and safety documents including SWMSs that relate to the following: 1. Concreting, Formwork and Steelfixing. 2. Concrete Pump Works. 3. Work at Heights and Being Struck by Falling Objects.
With effect from 8 February 2019: 1. Mr Tarek Hbouss implemented a new company hierarchy that includes a new full-time position of Safety Manager. The Safety Manager's role is to enforce safety and precautionary measures. 2. Mr Tarek Hbouss implemented a new company policy that no employees or subcontractors are to be on site without Dynamic Formwork's Safety Manager being present. 3. Mr Tarek Hbouss implemented a new Emergency Plan Checklist. 4. Dynamic Formwork introduced a more detailed induction process including a Site Induction Form that lists the relevant topics to be addressed at the induction and asks the worker whether he or she has understood. 5. Dynamic Formwork developed a Construction Safety Report, a report system used to record details of any incident that occurs for any work site. 6. Dynamic Formwork engaged an external consultant company, Weyworth Constructions Pty Ltd, to review Dynamic Formwork's company procedures and provide advice regarding work health and safety issues. 7. Dynamic Formwork developed a Construction Daily Log, a report system used to record details of a particular work site including: 1. A list of contractors and subcontractors and their job categories. 2. The description of the equipment for the job. 3. The status of the work. 4. A list of any issues with the contractor/representative. 1. Dynamic Formwork developed a Site Establishment Checklist which outlines the following pre-commencement measures that must be satisfied before any work is commenced by employees or subcontractors: "Access walkways identified, unobstructed & clear of slips/trips hazards. Appropriate stretcher stairs; Services & back-filled excavations identified, & location plan maintained as required; and In-ground & overhead hazards taken into account." 1. Dynamic Formwork developed a "Site Safety Walk - Risk Assessment" which identifies any hazards or risks to be addressed for any particular work site. The following questions must be addressed before any work is commenced: "a. Are there any slips, trips and falls risks impacting on safe access and egress?; b. Are there any other trades or activities that may impact on work safety?; c. Is there a risk of injury due to open trenches or excavations?; d. Are fall zones and penetrations protected? (eg stair voids, roof areas, balconies) e. Are impaling hazards appropriately protected? (eg star pickets, reo bars); and f. Is there any risk of items falling on persons below?" 1. Dynamic Formwork now hosts work health and safety meetings with its workers. The relevant topics of discussion include "site specific risk assessment, specific activity training, SWMS, safety of vehicle load and off-loading, basic traffic management/parking, overhead electrical powerlines, underground services, falls, safe delivery, documentation, site security and any other issues".
Mr Tarek Hbouss stated that, based on the above improvements made to Dynamic Formwork's systems, he is confident that Dynamic Formwork will not reoffend or commit any further work health and safety breaches.

Cooperation with the Prosecutor's Investigation

Dynamic Formwork cooperated with the Prosecutor during its investigation, including voluntarily meeting with inspectors and producing documents on request.
Since the incident, there have been no further incidents and no improvement or prohibition notices issued to Dynamic Formwork.
Dynamic Formwork has continued to maintain its commitment to creating a safe working environment for all its workers and subcontractors.

Community Involvement

Outside of work, Mr Tarek Hbouss is heavily involved in the local community in the Greenacre and Punchbowl areas.
Mr Tarek Hbouss has made contributions and continues to make contributions to the Australian Islamic House in Edmondson Park NSW.
In 2018 Mr Tarek Hbouss undertook not-for-profit work by assisting in the building and construction of the Church of Pentecost Australia located in Auburn, for the African community in that area.
In 2019 Mr Tarek Hbouss undertook not-for-profit work by assisting in the building and construction of the Shrine of Our Lady of Mercy Church at Penrose Park. Mr Hbouss assisted by installing bathrooms, handrails, and disabled access throughout that church.
Mr Tarek Hbouss also visits elderly members of the Greenacre and Punchbowl area including relatives, friends and parents of friends to catch up with them and check on their wellbeing and health.

Consideration

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

Objective Seriousness of the Offence

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 The Queen (No. 2) [1988] HCA 14; (1988) 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] NSWCCA 242; (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 [1988] HCA 67; (1988) 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].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
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].
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] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
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. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
The Court of Criminal Appeal has examined the sentencing process with regard to the Act 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. Justice Basten at [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."
Further at [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 [event] 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 little, if any, costs."
At [53] his Honour 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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the defendant's level of culpability are based upon the following: 1. Dynamic Formwork knew of the risk. In any event the risk was foreseeable as there was guidance material directed to the particular risk. 2. The likelihood of the risk occurring was significant. 3. The potential consequences of the risk were death or serious injury. 4. Simple and well-known steps were readily available to eliminate or minimise the risk. 5. There was no great burden or inconvenience in these steps being implemented. Dynamic Formwork took remedial measures quickly after the incident. 6. Mr Edawy suffered a serious injury when his leg was impaled on a reo bar. 7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence. 8. Pinnacle Constructions was the head contractor and had overall responsibility for co-ordinating work on the site. 9. 21st Century was responsible for extending the scaffolding and scaffold stairs from the level of the concrete slab on level 7 up to the formwork deck being constructed on level 8. 10. The evidence does not disclose which entity on site removed the back scaffolding stairs, but it was not Dynamic Formwork. 11. It is appropriate to take into account the omissions of others on site and the contribution they made to the creation of the risk.
I find that the level of culpability of Dynamic Formwork is in the low range. This was the submission made by counsel for Dynamic Formwork. Counsel for the prosecutor very properly conceded that this was the appropriate finding.

Deterrence

The penalty imposed in relation to this offence 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; (2016) 93 NSWLR 338 at [180].
Proceedings in this court concerning falls from heights resulting in serious injury are far too common. In my judgment in SafeWork NSW v Ru Gong Li [2018] NSWDC 189 I listed 22 such cases in the previous 2.5 years. Since that decision there have been a further 34 cases heard in this court.
The penalty must reflect the need for specific deterrence. Dynamic Formwork is still conducting a business. Its operations involve formwork and falsework and the continuing engagement of workers and sub-contractors.

Aggravating Factors

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

Mitigating Factors

Dynamic Formwork does not have a prior record of convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
Dynamic Formwork is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Dynamic Formwork has been in business for approximately four years.
Dynamic Formwork is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
Dynamic Formwork has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.
Dynamic Formwork has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Edawy was caused by its actions.
Dynamic Formwork 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 the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Dynamic Formwork a 25% discount for an early plea.
Dynamic Formwork gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

I am required to have regard to s 6 of the Fines Act 1996 (NSW) 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: Mahdi Jahandideh v The Queen [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.
In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."

Affidavit of Tarek Hbouss Sworn 20 December 2021

Mr Tarek Hbouss swore an affidavit on 20 December 2021 concerning capacity to pay (DX 2).

Dynamic Formwork's Financial Documents

Mr Tarek Hbouss provided financial evidence (including tax returns and financial statements) as follows: 1. In 2019/2020 financial year, Dynamic Formwork paid $137,200 in wages, had total income of $3,300,080.07, nett income of $(102,620.40), total assets of $270,604.27 and nett assets of $(42,940.18). 2. In 2020/2021 financial year, Dynamic Formwork paid $137,200 in wages, had total income of $1,636,237.30, nett income of $35,139.54, total assets of $296,335.81 and nett assets of $13,699.36. 3. In the period of 1 July 2021 to 30 September 2021, Dynamic Formwork had total income of $177,345.46, nett income of $(62,805.03), total assets of $72,430.19 and nett assets of $(49,105.97).

Dynamic Formwork's Financial Circumstances

During 2020 and 2021, as a result of the COVID-19 pandemic, Dynamic Formwork experienced a decline in annual turnover due to a lack of work in the building and construction industry.
Dynamic Formwork often sends its workers home because of the lack of work.
Currently, Dynamic Formwork is engaged in formwork, steelfixing and concreting services at two relatively small residential worksites.
Due to the limited amount of current work, Dynamic Formwork often subcontracts other companies or workers to undertake work.

Personal Financial Circumstances

Mr Tarek Hbouss pays himself a salary from Dynamic Formwork of $62,400.00 nett per year.
Mr Tarek Hbouss' weekly household expenses are comprised of the following: 1. $750 for rent. 2. $500 for food. 3. $300 for entertainment services. 4. $230 for utilities.
Mr Hbouss' wife assists him in paying the above weekly expenses.
Mr Hbouss owns a car for personal use and incurs expenses for fuel, repairs, registration, and insurance fees.
Mr Hbouss previously held a superannuation account with a balance of approximately $55,000.00. However, due to unforeseen circumstances, he no longer has any superannuation savings.

Capacity to Pay Fine

Mr Tarek Hbouss and Dynamic Formwork have limited capacity to pay any large fine imposed by the Court.
A large fine would be detrimental to the continuing survival of Dynamic Formwork as it is currently operating at a loss and does not have a lot of spare funds. A large fine may result in Dynamic Formwork having to terminate some of its employees to manage its expenses.
Dynamic Formwork has to pay its own legal costs incurred in these proceedings as well as the Prosecutor's legal costs.
Dynamic Formwork's assets are not liquid and are needed to operate the business. Given Dynamic Formwork's financial circumstances, it is also unlikely to be able to obtain a loan to meet a large fine.
Mr Tarek Hbouss has put most of his savings into the running of the Dynamic Formwork.
There was no cross-examination on these matters.
Counsel for Dynamic Formwork submitted that it did not have the capacity to pay a large fine and that the penalty imposed should not be such that it would financially cripple the company. I accept this submission. Mr Hbouss put all of the relevant financial material before the court and was not challenged about it. Counsel for the prosecutor correctly and properly accepted that the financial position of Dynamic Formwork was not strong.
I will moderate the fine which I would have otherwise imposed.

Costs

The parties have agreed to an order that the defendant is to pay the prosecutor's costs.

Penalty

My orders are: 1. Dynamic Formwork Group Pty Ltd is convicted. 2. The appropriate fine is $60,000 but that will be reduced by 25% to reflect the early plea of guilty. 3. Order Dynamic Formwork Group Pty Ltd to pay a fine of $45,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 5. Order Dynamic Formwork Group Pty Ltd to pay the prosecutor's costs.

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: 14 February 2022

Occupational Health and Safety Act 1983(NSW)

Work Health and Safety Regulation 2017(NSW)

At a glance

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Judgment (43 paragraphs)

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Legislation Cited (5)

Cases Cited (18)

Cited By (1)