SafeWork NSW v J & CG Constructions Pty Limited - [2020] NSWDC 614 - NSWDC 2020 case summary — Zoe

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SafeWork NSW v J & CG Constructions Pty Limited

[2020] NSWDC 614

District Court of NSW|2020-10-06|Before: Order J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2020-10-06

Before

Order J

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71
(2000) 49 NSWLR 610 DPP v Gregory [2011] VSCA 145
(2011) 34 VR 1 Green v The Queen [2011] HCA 49

Source

Original judgment source is linked above.

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71(2000) 49 NSWLR 610 DPP v Gregory [2011] VSCA 145(2011) 34 VR 1 Green v The Queen [2011] HCA 49(2011) 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60(2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357. Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty LimitedAttorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242(1988) 164 CLR 465 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263(2001) 109 IR 316 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92

Judgment (35 paragraphs)

[1]

[4]

Background

The parties presented an Agreed Statement of Facts and this material is summarised below.
Constructions conducted a business or undertaking which provided specialist construction services for residential developments, multi-storey apartments, commercial construction, and public works.
Constructions was the principal contractor for the construction of a 39-room boarding house at 66-68 Barker Street, Kingsford (the Site).
As at 23 March 2017 Constructions had 14 direct employees.
Mr Mark Santos Guerreiro was the sole director of Constructions. Mr Guerreiro also occupied the formal position of General Manager for the purposes of the Worker Health and Safety Management Plan (the WHSM Plan) for the Site.
In accordance with the WHSM Plan, Mr Guerreiro had primary responsibility for the Worker Health and Safety (WHS) management systems which included the following: 1. Maintaining standard documentation, Work Instructions, WHS Procedures, Management System Manuals, Company Policies and any other appropriate documentation; 2. Reviewing organisational relationships as they affected quality, environment, WHS and developing proposals for improvement. 3. Developing, maintaining and reporting on the effectiveness of the WHS management system in place. 4. Assisting with the resolution of all matters associated with quality, WHS and environment. 5. Ensuring that all company activities are carried out in accordance with the applicable statutes, codes of practice and business ethics. 6. Allocating sufficient human, technical and financial resources to enable the company to operate in accordance with the WHS management system and associated procedures, including the appointment of a WHS Co-ordinator who would be responsible for communicating all health and safety requirements to all personnel attending the Site. 7. Reviewing the control of risks and hazards. 8. Chairing and positively contributing to WHS Management Review meetings.
Mr Guerreiro visited the Site about once a week.
Mr Andrew Pengly was employed by Constructions as the Safety Officer. Mr Pengly was based at another job, and had limited involvement and interaction with the Site where the incident occurred.
Mr Phillip Anastassiou was employed by Constructions as the Construction Manager.
Mr Reza Ramjerdi was employed by Constructions as its Project Manager at the Site. He was at the Site three to four times each week, for two to three hours at a time. His duties included: 1. maintaining overall safety for the project. 2. managing the design process throughout the duration of the project. 3. managing the tendering process of trades and suppliers for the project. 4. managing the overall budget and cashflow for the project. 5. managing the overall program for the project. 6. managing and maintaining overall quality for the project.
Mr Nima Asadi was employed by Constructions as its Site Manager at the Site. He was at the Site at all times, and his duties included: 1. managing and overseeing the day-to-day activities undertaken by sub-contractors and suppliers. 2. providing inductions to all workers commencing work at the Site. 3. managing and maintaining overall on-site safety. 4. managing and maintaining activity sequencing and programs. 5. managing and maintaining overall quality.
Mr Anastassiou and Mr Ramjerdi reported directly to Mr Guerreiro. Mr Pengly reported to Mr Anastassiou and Mr Ramjerdi. Mr Asadi reported to Mr Ramjerdi. In addition to this formal reporting structure, there were informal communications between each of these personnel.

[7]

The Incident

On 23 March 2017 at 7.00am, Mr Jabur arrived at the Site to commence work. He was not provided with a site induction.
After he arrived, he met with Mr Omar (who could speak Arabic) and discussed the work he would be undertaking at the Site that day. Mr Omar told him that he would be involved in stripping formwork columns on Level 2. Neither Mr Asadi nor Mr Ramjerdi were aware that Orbit would be stripping columns on Level 2 on the day of the incident.
As at 23 March 2017, Level 2 of the Site was a concrete slab with formwork columns laid. Level 2 had the following significant features: 1. A return was located at the northern end of the concrete slab. The return, which was a void, measured approximately 2.3 metres in length along the southern side and 1.8 metres in length along the western side. 2. A cement column on the western side of the return ran from the floor to the ceiling. The column was about 835mm from a metal formwork prop that was 500mm from the edge of the void of the return. 3. Positioned to the north of the return was scaffolding that ran along the front of the building. The gap between the form deck and the scaffold was 1.17 metres. 4. The drop from the Level 2 lower floor to the basement level was approximately six metres.
Mr Omar did not check whether Mr Jabur had been provided with a site induction.
Mr Omar did not provide Mr Jabur with any information or training about how to strip the columns. In particular, he did not provide any information about the formwork column on Level 2 which was adjacent to the unprotected edge.
Due to his limited English communication skills and relative lack of experience, Mr Omar paired Mr Jabur to work alongside another Arabic speaking worker, Mr Mohamed Akram. Mr Akram usually worked as a truck driver and was not an experienced formworker.
Between approximately 7.00am and 9.15am, Mr Jabur worked alongside Mr Akram on Level 2. Together, they stripped five formwork columns during that time.
At approximately 9.15am they started stripping the sixth column. This particular column was the one adjacent to the unprotected gap between the return on the building and the scaffold.
The column had timber beams supporting it and was fixed to the lift shaft. As Mr Jabur was removing the supporting timber beams, he fell off the unprotected edge and landed on a concrete slab on the lower ground floor more than six metres below.

[9]

Systems of Work Before the Incident

Since the date when the gap between the scaffold and the edge of the building was identified (about 9 or 10 days before the incident), Constructions did not: 1. Prohibit work in the area of the gap until the risk of a fall from height was controlled. 2. Put an exclusion zone or barricades in place to prevent access to the area. 3. Instruct workers not to work in the vicinity of the gap. 4. Fix the erected scaffold so that there was no longer a gap. 5. Put appropriate fall protection in place.
Constructions had developed the WHSM Plan for the job at the Site. The WHSM Plan outlined the risk management processes to be used to identify and control risk. It specified that the Project Manager (Mr Ramjerdi) was responsible for inspecting the Site and conducting risk assessments.
Neither Mr Ramjerdi nor anyone else on behalf of Constructions undertook a written risk assessment for the management of the risk of falls for work being carried out at the Site.
The WHSM Plan also specified that the Site Manager (Mr Asadi) was responsible for ensuring that sub-contractors complied with their Safe Work Method Statement (SWMS), by monitoring actual activities against those set out in the SWMS. Neither Mr Asadi nor anyone else on behalf of Constructions took steps to assess whether or not Orbit complied with its SWMS.
Mr Jabur was not provided with the information and instruction contained in either the Orbit SWMS, or the WHSM Plan.
When Mr Jabur fell, he was working in an area where there was a risk of falling more than two metres and there was no fall prevention system in place. It would have been reasonably practicable for Constructions to have ensured that a fall prevention system was in place by: 1. Extending, modifying or moving the existing scaffold so that there was no gap between the scaffold and the building from which a person could fall from height. 2. Putting in place edge protection, fencing or a steel mesh barricade in the area where the erected scaffold did not meet the slab of the building. 3. Installing a catch platform in the area where the erected scaffold did not extend to the slab of the building. 4. Installing individual fall arrest systems, if any of the other measures above did not adequately manage the risks of a fall from height.

[22]

Changes to practices and processes

Mr Guerreiro deposed that he believes the changes that have been made following the incident should eliminate the risk on a Constructions worksite.
Mr Guerreiro said that there is a now a stronger emphasis placed upon safety in the planning and design of scaffolding and the consultation process with sub-contractors and project teams before construction work begins. There is now a requirement imposed by Constructions in all its sub-contracts that proprietary mobile and temporary metal handrails are to be installed on any leading edges generated during a project.
A third-party safety specialist was engaged to design the company's new safety management system and to provide advice on an ongoing basis on health and safety.
Constructions now has a certified Integrated Management System (IMS) in place.
Mr Guerreiro said that the introduction of an IMS and the hiring of an IMS Manager to train employees and contractors on how to use the IMS has been very valuable in consolidating policies and procedures and ensuring compliance across the business. The system led to the introduction and implementation of a standing agenda item for safety at team meetings held weekly or fortnightly at the head office. Several topics are covered regularly including high risk works, policy and procedure updates, legislative updates and advancements. The IMS is audited annually.
Mr Guerreiro has also introduced a mobile app called "Assignar" to communicate important information to the whole workforce regarding projects, policies and procedures. The "WhatsApp" messaging app has also been used to allow for instantaneous communication between workers and supervisors regarding project issues.
Mr Guerreiro set out the financial investment made by Constructions to improve safety following the incident: 1. Development and implementation of an IMS by Benchmark: $12,210. 2. Engagement of Australian Workplace Management safety consultants: $10,175. 3. Salary paid to IMS Manager from 17 July 2017 to 18 May 2018: $90,000. 4. Salary paid to Safety Manager from 1 July 2017 to 4 May 2018: $123,500. 5. Cost of subscription for the Assignar app for 2017 and 2018: $11,145.42.

[25]

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. The risk of workers falling from heights on construction is well known. There was ample guidance material available that set out the risks associated with workers undertaking formwork at heights. The risk of a fall from height for any individual working in the vicinity of a void, in the absence of adequate protection such as a catch platform, is obvious and clearly foreseeable. 2. The likelihood of the risk occurring was significant. 3. The potential consequences of the risk were severe and included death and serious injury. It was a six meter fall over the edge of the platform. 4. There were simple and effective steps that Constructions as the principal contractor could have taken to eliminate or minimise the risk. It should have ensured that an appropriate risk assessment was undertaken, prohibited workers from undertaking work on Level 2 until adequate fall protection was in place, undertaken an inspection of the relevant site and ensured that exclusion zones had been set up to prevent or restrict access to areas that posed the risk of a fall. 5. There was no particular burden or inconvenience involved in taking appropriate steps to minimise the risk. There was no evidence that the process of stripping of the formwork would have been hindered if the appropriate protection and controls had been installed. Constructions took several steps after the event to install scaffolds, catch decks and handrails to prevent falls within voids, and use individual fall arrest systems as a final control. 6. The injuries to Mr Jabur were serious, necessitating a lengthy stay in hospital, and later operations. 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.
I find that Constructions' level of culpability is in the mid range.

[29]

Parity

Orbit was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident in which Mr Jabur was injured. The penalty imposed was a fine of $180,000, after a discount of 25% for an early guilty plea - Safework NSW v Orbit Formwork Pty Limited [2019] NSWDC 685.
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].
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 at [139] 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."
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.
It is appropriate for the court to consider the respective contributions of Orbit and Constructions. 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: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].
It is often the case that a sub-contractor who is a direct employer is found to be more culpable than a principal contractor on a construction site. Such a finding takes into account: the nature of the duty of an employer to a direct employee; the fact that the employer is often a specialised contractor which has appropriate safety systems in place; and the reduced opportunity for a principal contractor to take effective action where there is a casual act by an employer in breach of a duty imposed by the Act.
This case is different. Orbit raised concerns about the dangerous state of the scaffold on two occasions. It first raised concerns 10 days before Mr Jabur fell. It provided photos of the gap. It was Constructions which had engaged the scaffolder Showcase Hire. It was Constructions which had the power and the duty to get the scaffolder back on site. The submission was put that Constructions could not force the scaffolder to come back to rectify the defect. If that proved an issue, Constructions could have engaged a new contractor to come to the Site to rectify the problem. No doubt it could have charged the expense of that back to Showcase Hire.
I have considered the respective contributions of Constructions and Orbit. In the circumstances I see no reason to adjust the penalty for Constructions because of parity considerations.

[32]

Statement of Mr Ali Jabur

Mr Jabur provided a Victim Impact Statement to the court. He was born in Iraq in 1991 and came to Australia in late 2014 from Syria. Arabic is his first language.
Following his fall, Mr Jabur remembers waking up the next day at St Vincent's Hospital and being advised that he had suffered fractures to his left clavicle, left hand, sternum, and right knee, a left shoulder dislocation, and multiple lacerations to his left leg. He was in hospital for a fortnight.
In 2017 Mr Jabur had several operations to his hands which were unsuccessful. In 2018 he underwent shoulder stabilisation reconstruction surgery to address persistent left shoulder pain, muscle wasting and weakness. Mr Jabur still cannot lift his left arm above his head or carry anything heavy but has found that with physiotherapy and pain medication his range of motion has increased post-surgery. In 2019 Mr Jabur underwent right knee surgery to deal with swelling, weakness and pain. Since this surgery he still experiences difficulty standing or walking for moderate periods of time.
Prior to the extensive injuries sustained in the incident, Mr Jabur did not suffer from any physical conditions and was able to complete all daily tasks. Today, he continues to suffer from the following physical and mental health issues as a result of the injuries arising from the incident: significant scarring; constant left shoulder pain; restricted left shoulder range of motion; right shoulder consequential pain; tenderness, weakness and restricted range of motion in left hand; constant pain, regular swelling and restricted range of motion in right knee and leg; chest pain, tightness and difficulty breathing; aggravation of pain in cold weather; numbness from his hip to his knee on his right side; occasional pain in left knee; walking with a limp favouring his left side; blurry vision; frequent headaches and migraines; feeling faint, weak and light-headed; difficulty walking and standing; difficulty negotiating stairs and uneven surfaces; difficulty bending, twisting, kneeling, squatting, stooping and lugging; difficulty driving for more than 15 minutes; difficulty carrying moderate to heavy objects; difficulty carrying objects above shoulder height; difficulty pushing and pulling items; stress; anxiety; frustration; depression; rumination; concentration loss; broken sleep patterns; lethargy; reclusive habits; loss of self-esteem and confidence.
Due to his injuries, Mr Jabur has been unable to return to his pre-accident employment. He has lost career opportunities and independence. He has no formal tertiary education and his poor English skills make it difficult to find a job outside of labouring work. He used to love playing sports and attending the gym but now he can no longer engage in such activities.

SafeWork NSW v J & CG Constructions Pty Limited

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (35 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (29)