Safework NSW v HCM Building Pty Limited

HCM Building and NSW Formwork Agreement

1. On 1 March 2016 NSW Formwork provided HCM Group with a quote to undertake formwork at the workplace.
2. HCM Building and NSW Formwork entered into a "Subcontract Agreement: Formwork, Steelfixing and Concrete Works" (the Contract) in 2016. HCM Building was described in the Contract as the "builder" and NSW Formwork was described in the Contract as the "contractor" or "subcontractor".
3. The scope of works "included all labour, materials, plants and equipment, to execute the construction & certification of all concrete and formwork services as per the subcontractor documents."
4. The Contract provided that: ● "The subcontractor should supply all material, labour, tools and the like to construct all formwork, steelfixing and finish concrete to the various structural and non-structural concrete elements detailed on the architectural and structural drawings." ● "The subcontractor was to install, construct and maintain all timber handrails, safety rails, kick boards, starter bar caps and the like to all formwork areas being formed up to WorkCover Authority Regulations and HCM Buildings Pty Ltd satisfaction, including any safety signage that may be required." ● "The contractor would provide a SWMS for review prior to commencement on site and will make any changes as required by HCM Building Pty Ltd." ● "The contractor would ensure compliance with the requirements of WHS consultation for occupational health and safety this will include the participation of employees in the election of a site OHS committee representative." (emphasis added)
5. NSW Formwork provided invoices for work at the workplace to both HCM Group and HCM Building for the period of 23 March 2016 to 2 May 2016.
6. Mr Doueihi was at the workplace every day and he discussed the construction schedule for the workplace with Mr Bouchahine and Mr Mezyed.
7. NSW Formwork employed Mr Barbar Maurice Boumoussa as NSW Formwork's Site Foreman and Site Supervisor for the workplace. Mr Doueihi was Mr Boumoussa's supervisor for the workplace.
8. Mr Doueihi and Mr Boumoussa liaised with Mr Mezyed in relation to the works to be undertaken at the workplace. Mr Boumoussa instructed NSW Formwork workers as to the work required to be undertaken at the workplace. Mr Boumoussa also conducted weekly safety inspections at the workplace.
9. NSW Formwork also employed Mr Zakaria Abdul Latif as a Formworker and Mr Entanious Mansour as a Formwork Leading Hand for the workplace. Mr Mansour had worked for NSW Formwork for approximately a year. His daily duties at the workplace included erecting and dismantling formwork and AFS Formwork Systems.
10. Mr Doueihi and Mr Boumoussa were Mr Mansour's supervisors for the workplace. They instructed Mr Mansour as to the work required to be undertaken at the workplace.

The Workplace

1. In about January or February 2016, construction commenced at the workplace.
2. In February 2016, NSW Formwork commenced formwork duties at the workplace.
3. In April 2016, the workplace consisted of a basement level and a ground floor formwork deck. The basement slab had recently been poured.
4. Between 4 to 5 April 2016, formwork activities continued on the ground floor and work also commenced on the Dincell Formwork Wall System. Dincell Formwork Walls and AFS Formwork Walls were delivered at the workplace.
5. Signage on the front of the workplace identified the workplace as a "HCM ______ Pty Ltd" site. There was a blacked out word after "HCM" and before the word "Pty".

The Incident

1. On 6 April 2016, Mr Bouchahine, Mr Douehi, Mr Boumoussa, Mr Mezyed, Mr Mansour and Mr Latif were present at the workplace.
2. Mr Boumoussa, Mr Mezyed and Mr Mansour arrived at 7.00am at the workplace.
3. Mr Boumoussa was the supervisor for NSW Formwork and Mr Mezyed was the supervisor for HCM Building for the workplace.
4. Mr Douehi was Mr Mansour's supervisor for the workplace.
5. HCM Building and NSW Formwork were scheduled to undertake formwork, steelfixing and the installation of Dincell and AFS Formwork Systems at the workplace.
6. Prior to the incident, Mr Boumoussa was working on the ground floor where he had been marking the coil ties. Mr Bouchahine and Mr Mezyed had received deliveries for reinforcement for the ground floor slab. Mr Bouchahine was operating the crane and Mr Mezyed was assisting with the delivery.
7. Mr Doueihi instructed Mr Mansour to use an eye laser to mark the underside of the formwork deck on the basement level so that the edge perimeter of the formwork deck could be trimmed to allow Dincell and AFS vertical wall panels to be inserted over the exposed vertical steel reo bars at the workplace.
8. Mr Doueihi did not provide Mr Mansour with any equipment to undertake the task.
9. At approximately 9.30am, Mr Mansour arrived at the basement level. Upon arrival, he found an aluminium stepladder which he used to undertake the task. He stepped onto the ladder and commenced using a laser to project the edge of the basement slab to the underside of the ground floor formwork deck. Mr Mansour had undertaken this task many times. As Mr Mansour was placing a nail into the deck the stepladder wobbled and he fell from the stepladder and was impaled on an exposed and uncapped vertical steel reo bar.
10. Mr Boumoussa heard Mr Mansour scream and saw him lying on the steel reo bar of the footing on the basement level below the formwork deck.
11. NSW Fire & Rescue and the ambulance arrived shortly after. The NSW Fire & Rescue team used a grinder to cut the vertical steel reo bar, leaving a section of reo bar in the body of Mr Mansour. Mr Mansour was then conveyed to Royal Prince Alfred Hospital where the section of reo bar was surgically removed.

Injuries

1. As a result of the incident, Mr Mansour sustained serious injuries. The reo bar went through his right buttock, extended through his pelvis and exited at his right hip. He suffered multiple pelvic fractures, including fractures of the coccyx and right sacrum, transection of the right ileac artery and a large right pelvic sidewall haematoma. He received lumbar sympathectomy surgery. He was discharged from hospital on 15 April 2016.

SafeWork Site Inspection

1. Following the incident, SafeWork Inspector David Webster inspected the workplace on 6 April 2016 at approximately 11.00am. Inspector Webster made the following observations of the workplace: 1. In the area of the incident located at the basement level, he observed a number of reo bars protruding from the ground adjacent to a concrete slab. None of the reo bars in that areas were fitted with protective caps. 2. There appeared to be blood on the ground on the concrete slab around the reo bars. 3. There were timbers in the location of the incident running diagonally across the corner of the basement concrete slab. 4. The formwork deck in the area directly above the reo bars had no fall protection fitted on either of the leading edges of the deck. The height of the formwork deck to the ground at basement level at that point was approximately three metres. 5. In other areas of the site he observed reo bars to be capped with plastic yellow reinforced caps.

Reo Bars

1. At the time of the incident there were reo bars, in the vicinity of where formwork was being constructed, which were vertical, exposed and uncapped. Mr Mansour, Mr Doueihi and Mr Boumoussa had observed these reo bars to be capped with yellow plastic reinforced caps either the day prior to the incident or earlier in the day. Aside from the incident area, exposed reo bars in other areas were capped. Mr Mansour said it was usually his job to inform HCM Building or NSW Formwork if there were no bar caps. Mr Mansour said he remembered seeing bar caps in the area where he fell the day before but on the day he did not check whether or not the bars were capped.
2. HCM Building did not prohibit work being carried out in the basement level or ground level formwork deck when there was a risk to workers coming into contact with the exposed and/or uncapped vertical steel reo bars.
3. HCM Building did not ensure that any of the following reasonably practicable control measures were in place at the premises to control the risk of falling onto exposed vertical reo bars: 1. Maintaining measures (or ensuring that NSW Formwork maintained measures) to control the risk of workers falling onto vertical steel reo bars that were exposed or uncapped at the premises, such as: 1. Securely covering the exposed or uncapped vertical steel reo bars with reinforced reo bar caps; 2. Ensuring that reinforced reo bar caps were maintained over exposed or uncapped vertical steel reo bars; 3. Ensuring that the vertical steel reo bars were bent to lie horizontally on the concrete slab; 4. Ensuring that a light weight steel protective channel was positioned over the top of the vertical steel reo bars; 5. Installing edge protection around the leading edges of the formwork deck on the ground floor of the premises, located directly above the exposed or uncapped vertical steel reo bars on the basement level. 1. Prohibiting work being carried out in the basement level and/or ground floor level of the premises until: 1. all vertical steel reo bars were securely covered or the risk eliminated or minimised by one or more of the measures set out above; 2. edge protection was in place around the leading edges of the void on the ground floor level of the premises, above the exposed and/or uncapped vertical steel reo bars on the basement level. 1. Undertaking adequate inspections of the workplace prior to work being conducted to ensure that the vertical steel reo bars were not exposed or uncapped or allowed to point vertically without protection.

NSW Formwork Safety Systems

1. NSW Formwork had a "NSW Formwork Site Specific Induction & Safety Rules" document (NSW Formwork Safety Rules) and a "Safe Work Method Statement - Formwork Installation" (NSW Formwork SWMS) for the workplace.
2. Both documents were provided to HCM Building prior to work being carried out at the workplace.
3. The NSW Formwork Safety Rules provided that "All Contractors must apply a Duty of Care responsibility by carrying out a Risk Assessment of their workplace on a continual basis and complying with Work Procedure as per their Work Method Statement".
4. The NSW Formwork SWMS identified Mr Doueihi as the person responsible for ensuring compliance with, and review of, the NSW Formwork SWMS.
5. Step 1 of NSW Formwork's SWMS required NSW Formwork to "Plan the job prior to arriving on site". The hazards identified in Step 1 included inadequate training, consultation and planning. The control measures required to be implemented included reviewing the principal contractor's Site Safety Plan, and providing adequate and competent supervision.
6. NSW Formwork did not review HCM Building's Work Health Safety Rehabilitation and Environmental System Manual prior to work being carried out at the workplace.
7. Step 9 of NSW Formwork's SWMS identified slips and falls around frames and reo as a hazard during the task of installing the Dincel/ASF formwork system. At the time of the incident the Dincel/AFS Formwork system was not being installed, but the workers were preparing the workplace for the installation later that day. There was no requirement for the vertical steel reo bars to be exposed at this time. The control measures required to be implemented in the SWMS during the actual installation process were: 1. Clearing the area of trip hazards to install the base plate for Dincel or ready wall; 2. Remove bar caps to allow placement of base; and 3. When base plate was secure with pins reinstall reo caps.
8. The installation of Dincell/ASF walls involves the slotting of pre-fabricated wall frames over the vertical reo bars. The wall frames have internal webs with holes for placement of the reo bars. Prior to installation of the wall frames the reinforced caps must be taken off the reo bars. At the time Mr Mansour was undertaking the task the reo bars bar caps should have been in place protecting the reo bars. The reo bar caps should only have been removed immediately prior to installation of the walls, in accordance with the NSW Formwork SWMS.
9. NSW Formwork's Supervisors Mr Doueihi and Mr Boumoussa were required to implement these control measures.
10. While NSW Formwork had identified slips and falls around reo as a hazard during the installation process, the general risk of exposed or uncapped vertical steel reo bars was not documented in the SWMS prior to the step of the actual physical installation of the Dincel/AFS. The risk of uncapped or exposed vertical steel reo bars in the general work environment was not identified in the SWMS, nor were control measures identified in the SWMS.
11. Step 3 of NSW Formwork's SWMS required NSW Formwork's supervisor to conduct site inspections to identify site conditions.
12. NSW Formwork did not undertake an inspection of the workplace, prior to work being conducted, to ensure that the vertical steel reo bars were not exposed.

Work Health Safety Rehabilitation and Environmental System Manual

1. Mr Dalzell had developed a Work Health Safety Rehabilitation and Environmental System Manual (the Manual) for HCM Building. The Manual was readily available on HCM Building's web portal prior to the incident. The manual was headed "HCM Construction Pty Ltd" and "Croydon Development 20 March 2016" on its covering page. No entity named HCM Construction Pty Ltd is registered with ASIC.
2. The parties agree that the Manual should be tendered in the sentence bundle and that the parties were at liberty to make relevant submissions in relation on it.
3. HCM Building did not properly implement the Manual at the site.
4. The Manual was not available to any HCM Group, HCM Building or NSW Formwork workers at the workplace until after the incident. Pursuant to cl 310 of the WHS Regulation, HCM Building as principal contractor had a duty to ensure so far as was reasonably practicable, that each person who was carrying out construction work in connection with the project was, before commencing work, made aware of the content of the WHS management plan for the workplace, which included the Manual.
5. HCM Building in part relied on the NSW Formwork SWMS to control the risk of falling onto exposed or uncapped vertical steel reo bars at the workplace. It also relied on the contractual provisions between it and NSW Formwork which specified that NSW Formwork were required to install and maintain all starter bar caps. As the builder at the construction site, HCM Building had a duty to ensure that workers were not exposed to risks of exposed reo bars at any time.
6. HCM Building and NSW Formwork did conduct formal toolbox talks however the toolbox talks were not documented on the Manual's Record of Tool Box Talk Form.
7. HCM Building's documented WHS system was not properly implemented at the site.

WHS Regulation

1. Clauses 78(1)(2)(c) and 78(1)(2)(e) of the WHS Regulation said that a PCBU at a workplace must manage, in accordance with Pt 3.1 of the WHS Regulation, 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, including the risk of a fall: 1. in the vicinity of an edge over which a person could fall, or 2. in any other place from which a person could fall.
2. The risk of a fall from the formwork deck on the ground floor of the premises located directly above where the exposed or uncapped vertical steel reo bars were located was not controlled at the workplace.
3. Clause 34 of the WHS Regulation said that "a duty holder in managing risks to health and safety must identify reasonably foreseeable hazards that could give rise to risks to health and safety."
4. NSW Formwork and HCM Building had identified the risk of exposed reo bars and the control measure that the reo bars needed to be capped. HCM Building and NSW Formwork did not ensure the control measure of capping the reo bars at all times. The bar caps had been removed or dislodged in the incident area prior to Mr Mansour undertaking the task, and had not been replaced.

Working at Heights Near Exposed and/or Uncapped Vertical Steel Reo Bars

1. The following guidance materials were available to control the risk of falling onto exposed vertical steel reo bars at the workplace prior to the incident.
2. WorkCover NSW Code of Practice "Managing the Risks of Falls at Workplaces" 2015 (Falls Code) recommended: 1. In section 2.1 "How to Identify fall hazards" to inspect the workplace for "edges - protection for open edges of floors, working platforms, walkways, walls or roofs" and "holes, openings or excavations - which will require guarding"; 2. In section 3.2 "Work on Solid Construction" that 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: the perimeters of buildings or other structures, mezzanine floors, openings in floors or the open edge of a stair, landing, platform or shaft opening. 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.
3. HCM Building and NSW Formwork were required to install edge protection around the leading edges of the formwork deck on the ground floor of the workplace directly above where the exposed vertical steel reo bars were located on the basement level at the workplace, as per the Falls Code.
4. HCM Building and NSW Formwork did not install edge protection in the incident area.
5. The WorkCover Code of Practice - Formwork 1998 (1998 Code) was developed based on previous occupational health and safety legislation, however, this Code of Practice is still current and can be relied on to instruct duty holders on how to meet their WHS obligations in relation to fall prevention onto exposed vertical steel reo bars at the workplace.
6. Section 3.2 of the 1998 Code outlines the planning practices a principal contractor should (in consultation with its contractor) employ before commencing formwork on a construction site. These include an assessment of the risks involved in carrying out the work and identifying the most appropriate methods to control any risk of injury.
7. Section 3.3 of the 1998 Code outlines the 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 SWMS 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.
8. Section 4 of the 1998 Code provides that the principal contractor and the 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 their employees in relation to those matters over which they have control. Control measures to prevent persons working at heights from falling should be provided and maintained as part of a safe system of work.
9. Section 4.1 of the 1998 Code said that a system of control must be provided for persons exposed to a risk of falling. Accordingly, a risk assessment should be conducted for all work irrespective of height and appropriate control measures implemented. Control measures that provide a high level of protection, such as those that prevent falls, should be used in preference to those providing a lower level of protection such as fall arrest systems.
10. Systems of fall protection should also be provided for persons installing and removing safeguards. 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 onto which a person may fall would cause serious injuries, for example, a fall onto reinforcing steel starter bars, building materials (bricks, timber, tiles etc).
11. SafeWork South Australia's "Hazard Alert - Hazards of Reo Bars" (SafeWork SA Safety Alert) dated December 2012 was also readily available on the web at the time of the incident. This Alert provides a list of actions to mitigate the risk of hazard of uncapped reinforcement bars: 1. Carry out a detailed risk assessment prior to start starting the job, considering all risks that could arise, and eliminate them from the work process, or put in place measures to control the risk. 2. Plan tasks to eliminate or reduce any risks associated with formwork and the potential hazards associated with the use of reo bars. 3. Provide a safe means of access to and egress from formwork. 4. Exposed reo bars should be securely capped where there is any potential risk to workers. 5. Ensure that reo bar caps are maintained throughout the progress of the task. 6. Reinforced reo bar caps should be considered when working at heights around vertical reo bars. 7. Note that non-reinforced reo bar caps only prevent minor scratches and cuts, they will not prevent impalement.
12. SafeWork NSW's "Housing Industry Site Safety Pack" (SafeWork Safety Pack) was also readily available on SafeWork's 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)."

Systems of Work Following the Incident

1. Following the incident, SafeWork issued Improvement Notice 7-289231 to HCM Building to eliminate the risks associated with unprotected reo bars.
2. As a result of SafeWork's Improvement Notice, HCM Building ensured that caps covered all exposed vertical steel reo bars on 11 April 2016 until it was necessary for them to be removed to erect and install the Dincell ASF walls.
3. Mr Mezyed received training from Mr Dalzell on the Manual after the incident.
4. HCM Building implemented the Manual at the workplace after the incident and distributed it to the Site Manager and NSW Formwork.
5. On 7 April 2016, NSW Formwork filled out the following forms that formed part of the Manual: 1. Formwork Hazard Assessment Form; 2. Sub-trade Identification Checklist; and 3. Construction Consultation of Hazard Assessment Form.
6. The offender cooperated with SafeWork's investigation.

The offender's evidence

1. The offender tendered the affidavit of Mr Bouchahine affirmed on 18 October 2019 (DX1). HCM Building has been operating in the building industry for nine years. Mr Bouchahine has held a NSW builder's licence since 2009.
2. Mr Bouchahine offered an apology on behalf of HCM Building. He said that the business contravened the law and that as a result Mr Mansour and Mr Boumoussa were exposed to a risk of death or serious injury. He is sorry that as a result of that failure Mr Mansour suffered a serious injury. The offender has not previously been charged with any offence.
3. Mr Bouchahine said that Mr Mansour has recovered well from his significant injuries. He has returned to work with NSW Formwork and has undertaken work on HCM Building sites.
4. HCM currently has 16 employees engaged on 4 construction projects.
5. In relation to the work site where the accident occurred, the intention was that Mr Dalzell would attend the site and provide training to Mezyed in implementation of the Manual. However, that training did not go ahead prior to the accident.
6. The management of safety at the site included: 1. HCM obtained all of the subcontractors' SWMSs, which were reviewed and stored in the site office. 2. A noticeboard was put up to display safety and other work-related information. 3. All workers were inducted at the site by Mr Mezyed. 4. Contractors were required to induct their workers into their own SWMS and provide evidence to HCM Building that this had been done. 5. Mr Mezyed undertook toolbox talks which covered site activities and any new or emerging hazards. 6. Both Mr Mezyed and Mr Bouchahine undertook site inspections. One of the things checked was whether there were any vertical reo bars which were uncapped. 7. Mr Mezyed and Mr Bouchahine had informal discussions with the NSW Formwork foreman. 8. Mr Boumoussa, the NSW Formwork foreman, conducted weekly site inspections. 9. The workers were supervised both by Mr Mezyed and their own foreman. 10. Site diaries were completed electronically.
7. HCM Building never set a limit on spending in regard to safety. In relation to formwork at the site, the offender relied in part upon NSW Formwork to implement its own systems and processes. The offender expected that NSW Formwork would erect guard rails where necessary, in accordance with its own SWMS. However, the offender acknowledges that it had a duty to make sure the work site did not pose risks to workers at any time, so far was practicable.
8. Mr Bouchahine had not noticed the absence of a guard rail in the accident area. The risk of a fall from height and the risk of injury from contact with reo bars was a risk known to the offender. Protecting reo bars with reinforced caps is standard industry practice. Mr Mansour had been appointed by the offender as the specific person with the responsibility for checking that the bar caps were on.
9. Mr Bouchahine saw that the bars were capped on the morning prior to the incident but did not observe that part of the site after that time. He assumes that at some point the caps were removed in order to put the Dincell wall up.
10. After the incident a meeting was undertaken on site involving all contractors. Workers were reminded of the importance of installing and maintaining reo bar caps. Since the incident additional emphasis has been placed on the importance of capping reo bars at all times, by communicating this message to contractors during inductions and toolbox talks and paying extra attention to this item during inspections.
11. The offender has updated its safety system and moved to an app-based application. Two employees have been appointed to implement safety systems at work sites. They liaise with Mr Dalzell at the start of the project to develop a manual for each project. They liaise with the site foremen to ensure they are following the procedures in the manual. They monitor safety by way of site inspections and being a point of contact for any safety concerns.
12. The offender has implemented site safety committees on each job site. The committees meet fortnightly. Site safety meetings and walk-throughs begin with each sub-contractor representative discussing general business.
13. The offender now requires all workers to attend a toolbox talk each Friday. Weekly toolbox talks are conducted on site with all subcontractor workers and the offender's staff. In addition to these Friday toolbox talks, all subcontractors are required to conduct weekly toolbox talk meetings with their workers. Each fortnight the offender conducts an on-site meeting between all senior staff of its own, and all subcontractor directors and senior staff working on the site.
14. In October 2019 12 staff of the offender and 3 office employees attended a group course in Work Health and Safety for Supervisors and Managers. Both Mr Bouchahine and Mr Mezyed attended that course.
15. The offender tendered a second affidavit of Mr Bouchahine dated 31 October 2019 (DX2). This demonstrated the community involvement and charitable donations of the offender.
16. The offender tendered two paragraphs from an affidavit by Mr Doueihi (DX3), which was originally prepared for the sentence hearing of NSW Formwork. Mr Doueihi said that when he arrived at work on the day of the accident he did not notice the absence of caps on the reo bars, but that they had been in place at the end of the previous day. Mr Doueihi also said that it was his intention to install wooden guardrails on the ground level deck, after it had been marked and trimmed.

Consideration

1. 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

1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v 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].
2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [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].
3. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
4. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
5. 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 judgment without any attempt to state precisely how any given factor has influenced the judgment.
6. The Court of Criminal Appeal has recently 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. His Honour Justice Basten at para 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."
7. Further at para 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, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
8. At para 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."
9. My findings about the offender's level of culpability are based upon the following: 1. The risks of a fall unto uncapped reo bars, and a fall from an unguarded height, were obvious and foreseeable. Both risks were known to and recognised by the offender. Guidance material in any event made such risks known to the industry generally. 2. The likelihood of the risk of falling onto the reo bars was significant, either because a worker such as Mr Mansour might fall off the ladder, or a worker on the ground level deck such as Mr Boumoussa might fall over the unguarded edge. 3. There was a potential for death or serious injury to result from a fall from height onto uncapped reo bars. Mr Mansour could easily have died or been catastrophically injured. 4. Caps for reo bars cost 35 cents each and were readily available. In fact the bars had been capped before the morning of the accident. A guardrail for the ground level deck was already on site but had not been installed by NSW Formwork. 5. There was no burden or inconvenience in capping the reo bars or installing the guardrail. Both steps were already part of the job and were presumably built into the price for the work. 6. The serious injury to Mr Mansour was a manifestation of the risk. 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. The offender was the principal contractor on the site and had a non-delegable duty to take reasonably practicable steps to ensure safety. It could not simply rely upon a subcontractor.
10. I find that the offender's level of culpability is in the mid range.

Deterrence

1. 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].
2. The penalty must reflect the need for specific deterrence. The offender is still conducting a business. Its operations involve construction, working at heights and the continuing engagement of workers.

Aggravating factors

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

Mitigating factors

1. The offender has no record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
2. The offender is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the incident demonstrate this. The offender has been in business for 9 years.
3. The offender is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
4. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken positive steps to guard against the risk of an incident such as this ever happening again. The offender 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.
5. The offender has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Mansour was caused by its actions.
6. The offender entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when 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 the offender a 25% discount for an early plea.
7. The offender gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offender co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Parity

1. NSW Formwork was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident in which Mr Mansour was injured.
2. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v R [2011] HCA 49; (2011) 244 CLR 462 at [30].
3. The principle operates in the nature of a "check" required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 Justice Campbell said: "An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence."
4. The court should not use a co-offender's sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
5. It is appropriate for the court to consider the respective contributions of NSW Formwork and the offender. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].
6. I find the offender was less culpable than NSW Formwork. The first 7 findings in par 113 above concerning objective seriousness are equally applicable to both offenders. However NSW Formwork: 1. was the employer of Mr Mansour 2. through Mr Doueihi directed Mr Mansour to get up the ladder to perform the Lasermarking 3. was the specialist formwork contractor at the worksite 4. should have installed suitable guardrails on its own formwork to protect its employees against the risk of falling from a height.

Capacity to pay a fine

1. 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.
2. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 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."
3. There was no submission about capacity to pay, so this issue does not arise.

Costs

1. The parties have agreed to an order that the offender is to pay the prosecutor's costs agreed in the amount of $35,000.

Penalty

1. My orders are: 1. The offender is convicted. 2. The appropriate fine is $180,000 but that will be reduced by 25% to reflect the plea of guilty. 3. Order the offender to pay a fine of $135,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. Order the offender to pay the prosecutor's costs agreed in the amount of $35,000.

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: 08 November 2019