SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai

SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai - [2018] NSWDC 398 - NSWDC 2018 case summary — Zoe

[5]

Guidance Material

At the time of the incident, the SafeWork Australia Managing the Risk of Falls at Workplaces Code of Practice (SafeWork CoP) was available. This document provides at section 3.2: "Barriers Barriers (or edge protection) to prevent a person falling over edges and into holes should be provided on relevant parts of a solid construction. These include: (a) The perimeters of buildings. … The barrier should be designed and constructed to withstand the force of someone falling against it. Edge protection should consist of guard rails, solid balustrades or other structural components, for example wire mesh supported by posts and provided with reinforced top edge. The top of the guard rail or component should be between 900 mm and 1100 mm above the working surface. If a guard rail system is used, it should a/so have mid-rails and toe boards or wire mesh infill panels."
At the time of the incident, the WorkCover Preventing Falls in Housing Construction Code of Practice (WorkCover CoP) was available. The WorkCover CoP provides guidance on how to eliminate, or if that is not possible, to minimise the risk of falls from height. This document provides that "Falls are a major cause of death and serious injury in Australian workplaces. Fall hazards are found when carrying out common tasks in the construction of a typical one or two storey house", and that: "(a) A person conducting a business or undertaking has more specific obligations under the WHS Regulations to manage the risk of a fall by a person from one level to another, including requirements to: (b) Ensure, so far as is reasonably practicable, that any work involving the risk of a fall is carried out on the ground or on a solid construction; (c) Provide safe means of access to and exit from the workplace; and (d) Provide adequate protection against the risk of falls."
The SafeWork CoP provides guidance for persons conducting a business or undertaking (PCBU) for managing risk under clauses 34 to 38 of the Work Health and Safety Regulation 2011 (NSW) (Regulation) in relation to falls from heights.
Clauses 34 to 38 of the Regulation require that duty holders must: "(a) identify reasonably foreseeable hazards that could give rise to risks of health and safety; (b) eliminate the risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety - minimise the risk so far as is reasonably practicable by implementing risk control measures in accordance with the hierarchy of control measures under clause 36 of the Regulation; (c) maintain the implemented control measure so that it remains effective; and (c) review and, if necessary, revise all risk control measures."
The Regulation requires duty holders to work through the hierarchy of risk controls to choose the most effective measures to eliminate or minimise the risk.
The WorkCover CoP provides guidance on various control measures in the hierarchy which are available to be implemented in order to provide adequate protection against the risk of falls, such as: "(a) Level 1: Carrying out any work that involves the risk of a fall on the ground or on a solid construction....A building structure that is used as an existing place of work and includes safe access and egress from which there is not risk of a fall from one level to another, for example, properly constructed stairs with fixed handrails, flat roofs with a parapet or permanently installed guardrails around the edges. (b) Level 2: Carrying out the work using a fall prevention device. For example, guardrails."
Section 3.1 and 3.4 of the Australian New Zealand Standard 4994.1:2009 on Temporary Edge Protection (the Standard) provide that temporary edge protection for exposed edges should be attached to the building structure and shall be designed so that forces transferred to the equipment will not cause or enable the edge protection to become detached from the supporting structure, in order to prevent a person falling from the edge.
Section 3.6 of the Standard provides that edge protection may include barriers such as railings, toe-boards and structural and non-structural infill panels.
Grandcity and Mr Cai failed to comply with the above guidance material.
Grandcity could have installed temporary edge protection, such as scaffolding or perimeter guard railing, around the edge of the first level Balcony of the Building to eliminate the risk of Mr Wang falling from height.
Grandcity could have provided adequate training, information and instruction to workers, in particular Mr Wang, as to the presence of the unprotected leading edge on the first level of the Building, the nature of the risks associated with working at heights, and the means by which the risk was to be eliminated or minimised, before commencing work on the Site.

[12]

Evidence for Defendants

Mr Cai affirmed an affidavit on 22 November 2018. He said that before the incident in 2016, he communicated with workers every day about safety. He did a walk around on the Site to see if there were any safety issues. He gave no explanation as to why there was no edge protection on the upper floor from which Mr Wang fell.
After the incident he contacted Master Builders to come to the Site to check upon safety conditions and upon his existing safety documentation. Grandcity is now engaged in a construction at Concord West. Grandcity has engaged safety consultants who have attended to conduct safety meetings with workers and new employees.
Mr Cai expressed regret for what happened to Mr Wang. He has stayed in contact with Mr Wang and calls him sometimes.
Ms Cai affirmed an affidavit on 22 November 2018. She is a director of Grandcity. She is finishing a Master Builders course with the Master Builders Association. Grandcity began operations in 2009. The Strathfield project on which Mr Wang was injured was its first large construction project. It was completed in October 2017. She was the project manager at the Site.
After the incident Grandcity contacted the Master Builders Association to seek advice about safety processes and procedures. The Association came to the Site and helped her to develop new company safety procedures. It also taught her how to conduct a risk assessment and to complete a SWMS for the Site. Grandcity adopted and implemented the changes recommended by the Association.
In March 2018, before works commenced at the new Concord West site, Ms Cai contacted Mr Knox of Compliance OHS to develop a company specific safety process and procedure. She has been dealing with Mr Knox ever since. There is now a documented safety process which Grandcity follows in relation to induction of workers and safety matters generally. Ms Cai annexed a copy of a documented toolbox talk, which, inter alia, recognises the risk of falls from heights.
The defendant also tendered an affidavit of Mr Benjamin Knox sworn on 22 November 2018. Exhibited to his affidavit was a large volume of the new safety documentation for Grandcity, which he has developed. There is now a suitable SWMS in relation to working at heights and edge protection. He provided some on-site training to Grandcity's workers in September 2018. Grandcity has paid his company $18,513 in fees so far and it is anticipated that a further $10,000 will be spent on safety and compliance in the future.

[14]

Objective seriousness of the offence - principles

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No. 2) (1998) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1998) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
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) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.
The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338. His Honour Justice Basten at par 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 par 42 his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step by step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."

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Cases Cited (11)

Cited By (50)