(1988) 166 CLR 51
BC v R [2020] NSWCCA 329
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
Chiang v R [2016] NSWCCA 45
Cowling v R [2015] NSWCCA 213
DPP v Gregory [2011] VSCA 145
(2011) 34 VR 1
Filippou v The Queen [2015] HCA 29
Source
Original judgment source is linked above.
Catchwords
(1988) 166 CLR 51
BC v R [2020] NSWCCA 329
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
Chiang v R [2016] NSWCCA 45
Cowling v R [2015] NSWCCA 213
DPP v Gregory [2011] VSCA 145(2011) 34 VR 1
Filippou v The Queen [2015] HCA 29(2015) 256 CLR 47
Green v The Queen [2011] HCA 49(2011) 244 CLR 462
Jimmy v The Queen [2010] NSWCCA 60(2010) 77 NSWLR 540
KMC v Director of Public Prosecutions (SA) [2020] HCA 6
Leach v The Queen [2007] HCA 3(2007) 230 CLR 1
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 Limited(2006) 66 NSWLR 566
R v Olbrich [1999] HCA 54(1988) 164 CLR 465
WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92(2009) 186 IR 125
WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263
Judgment (34 paragraphs)
[1]
rce [2020] NSWCCA 61
R v Wang [2020] NSWSC 1335
R v Wilkinson (No. 5) [2009] NSWSC 432
SafeWork NSW v Kayrouz Constructions Pty Ltd [2020] NSWDC 77
SafeWork NSW v Spectra Plumbing Pty Ltd [2019] NSWDC 415
Strbak v The Queen [2020] HCA 10
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125
WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316
Texts Cited: Australian/New Zealand Standard 4576:1995, Guidelines for scaffolding, June 1995
WorkCover NSW, Code of Practice: Work Near Overhead Power Lines, July 2006
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Kayrouz Constructions Pty Limited (Defendant)
Representation: Counsel:
M Scott (Prosecutor)
M Gerace (Defendant)
On 21 November 2016 Mr Christopher Ilioglou was working as a plumber on a construction site in Kogarah. Kayrouz Constructions Pty Limited ("Kayrouz") was the principal contractor. In the course of lifting six metre lengths of copper pipe up to Level 4 of the residential building construction site, Mr Ilioglou suffered serious injuries when the pipes came into contact with energised high voltage overhead power lines.
Kayrouz has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) ("the Act") it failed to comply with that duty and thereby exposed Mr Ilioglou to a risk of death or serious injury contrary to s 32 of the Act.
The maximum penalty for the offence is a fine of $1,500,000.
[4]
Procedural History
SafeWork NSW charged Kayrouz by a Summons filed on 24 September 2018 that being a person conducting a business or undertaking who had a work health and safety duty under s 19(1) of the Act to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed workers to a risk of death or serious injury contrary to s 32 of the Act.
The matter came before this court nine times for directions before Kayrouz pleaded guilty on 11 November 2019. The matter had been stood over several times to allow for the parties to engage in negotiations concerning a possible Enforceable Undertaking.
On 19 February 2020 the matter was listed for a sentence hearing before me. Counsel for the prosecutor informed the court that the parties had not been able to produce an Agreed Statement of Facts. He submitted that the defendant had served affidavit evidence which traversed some of the particulars of reasonably practicable measures pleaded in the Summons. Counsel for the prosecutor wanted the dispute between the parties brought to a head and submitted that the defendant had entered an "unconditional plea" and could now not dispute any of the reasonably practicable measures particularised in the Summons. The position of the prosecutor was that the defendant's affidavit evidence should not be admitted when it "traverses most, if not all, of the particulars of reasonably practicable measures that are enumerated in paragraph 10 of Annexure A of the Summons". He also indicated that the prosecutor was not in a position, so close to the sentence hearing, to call evidence on disputed factual matters, if the defendant was permitted to rely on the affidavit evidence.
To resolve the issue I vacated the sentence hearing fixed for 24 February 2020 and stood the matter over to 20 March 2020 for submissions on the status and effect of the defendant's plea of guilty entered on 11 November 2019.
By a judgment delivered on 3 April 2020, I permitted the defendant to rely upon the affidavit evidence already filed and directed the prosecutor and the defendant to file a Joint Schedule of Agreed and Contested Facts (Joint Schedule) by 4 May 2020: SafeWork NSW v Kayrouz Constructions Pty Ltd [2020] NSWDC 77.
[5]
The Summons
Paragraph 10 of the Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows:
"10. The defendant failed to ensure so far as is reasonably practicable, the health and safety of workers, in particular Mr Christopher Ilioglou, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to health and safety to workers:
(a) conduct a risk assessment or ensure that a risk assessment had been conducted of the hazards involved in the task of manually lifting 6-metre lengths of copper pipes from the ground floor to the upper levels of the building (the task), in particular, a risk assessment which identified the risk of the copper pipes coming into contact with high voltage power lines at the site if the task was performed on the Gray Street side of the building and the control measures to eliminate or minimise the risk, in accordance with clause 166 of the Work Health and Safety Regulation 2011 (the Regulation);
(b) develop, implement and enforce a safe work procedure for undertaking work in the task that included:
i. using an alternative location or access route to transport the copper pipes from the ground floor to the upper levels of the building, such as, access from the Princes Lane side of the building; and/or
ii. arranging for the high voltage power lines to be de-energised while the task was being undertaken on the Gray Street side of the building; and/or
iii. arranging for a lifting device or equipment (such as a crane) to be made available to deliver the copper pipes to the upper levels of the building on the Princes Lane side of the building.
(c) prepare a safe work method statement (SWMS) or ensure that a SWMS was prepared for the task which identified the hazard of the overhead high voltage power lines and control measures to address the hazard in accordance with clause 299 of the Regulation.
(d) ensure that information, instruction and training was provided to workers, including Mr Ilioglou, so they knew of the risks associated with working in close proximity to energised overhead power lines, including the high voltage power lines at the construction site;
(e) provide adequate supervision to sub-contractors to ensure that:
i. they did not handle or carry material, including 6-metre lengths of copper pipe, in close proximity to energised high voltage power lines at the construction site; and/or
ii. they used a safe method to handle or transport 6-metre lengths of copper pipes from the ground floor to the upper levels of the building.
(f) prohibit workers from handling or carrying material, including 6-metre lengths of copper pipe, that could come into contact with the energised high voltage power lines at the construction site if the high voltage power lines were not de-energised;
(g) develop, implement and enforce a work system that ensured:
i. the defendant was notified of any building materials, in particular, plumbing supplies, that was to be delivered to the construction site; and
ii. the provision of clear instructions to all workers at the construction site as to the steps to be undertaken to transport or carry building materials, including 6-metre lengths of copper pipes, safely throughout the construction site."
[6]
Legal approach to resolution of disputed facts upon a sentencing hearing
The standard of proof of contested or disputed facts required in a sentencing hearing depends upon which party is seeking to rely on a particular fact. In R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] the High Court said:
"a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
The High Court has since applied this approach in KMC v Director of Public Prosecutions (SA) [2020] HCA 6 at [33] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 at [64] - [66] (French CJ, Bell, Keane and Nettle JJ), and Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [23] (Gleeson CJ).
Any disputed fact that the prosecutor seeks to rely on must be proved beyond reasonable doubt: Strbak v The Queen [2020] HCA 10 at [32] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); R v Pearce [2020] NSWCCA 61 at [69] - [73] (Leeming JA, Rothman J, N Adams J); Alameddine v R [2020] NSWCCA 232 at [46] (Bathurst CJ); Cowling v R [2015] NSWCCA 213 at [13] (Leeming JA); R v AB [2011] NSWCCA 229 at [30] (Johnson J); R v Kirkland [2005] NSWCCA 130 at [13] - [16] (Hunt AJA, Grove and Hall JJ agreeing). By contrast, any disputed fact which the defendant seeks to rely on must be proved on the balance of probabilities: BC v R [2020] NSWCCA 329 (Gleeson JA, Price J, Wright J); Chiang v R [2016] NSWCCA 45 at [13] (Beazley P, Harrison J and R A Hulme J); R v Wang [2020] NSWSC 1335 at [5] (Beech-Jones J).
The parties prepared a Joint Schedule on 18 May 2020.
[7]
Agreed Facts
Kayrouz conducted a business or undertaking engaged in the construction of a five storey building located on the corner of 183-187 Princes Highway at 71 Gray Street, Kogarah, New South Wales ("the Site"). Kayrouz was responsible for the overall management and control of the Site. The value of the construction project was $13.5 million.
Mr Toufic Kayrouz and his wife are the Directors of Kayrouz. Mr Kayrouz was the Site Builder, Manager and Foreman.
Majenttas Pty Ltd ("Majenttas") was the developer of the construction located at the Site and Kayrouz was the principal contractor and builder. Mr Kayrouz was the Sole Director of Majenttas.
Ms Natalie Kayrouz was the Project Manager at the Site and her role included safety management, trade co-ordination and dealing with relevant authorities.
Spectra Plumbing Pty Limited ("Spectra") provided plumbing services for the project. Mr Michel Ayoub was the Sole Director of Spectra.
Mr Christopher Ilioglou commenced employment as a tradesman with Spectra on or about 1 February 2016. He was a licensed plumber, drainer and gas fitter. Mr Ilioglou's responsibilities included general plumbing installations.
Mr Mohieddine Derbas had been employed as a tradesman with Spectra since 23 October 2015.
Mr Vlasios Zarkos was employed by Spectra as an apprentice plumber in September 2016.
In February 2014, Spectra submitted a quote for plumbing works in response to an invitation from Majenttas. Kayrouz accepted the quote. The quote contained no scope of works provided. Spectra was subsequently engaged as a subcontractor to carry out the plumbing works at the Site. While Spectra's invoices were rendered to Majenttas, the invoices were paid by Kayrouz. There was no formal contract in place between Kayrouz and Spectra.
The construction was a five storey building consisting of 59 residential units with a basement ("the building").
The front façade of the building faced Gray Street. The right side of the building adjoined Princes Lane.
The incident occurred on a balcony, approximately 12 metres in height from the Ground Level, located on Level 4 of the building on the Gray Street side.
High voltage 11kV overhead power lines were located parallel to the Gray Street façade and were approximately 10.4 metres minimum height from street level and approximately 3.3 metres away from the balconies on the building façade.
[8]
The Incident
On 21 November 2016, Mr Ilioglou, Mr Derbas and Mr Zarkos commenced work at the Site at approximately 7.00am.
Sometime later Mr Ilioglou was asked to assist Mr Derbas and Mr Zarkos to move some copper pipes by manually lifting them from Ground Level and up the Gray Street side of the building to the Level 4 balcony and then into the building ("the task").
The copper pipes were tubular, 50mm in diameter and six metres in length. Mr Ilioglou, Mr Derbas and Mr Zarkos commenced manually transporting the six metre lengths of 50mm copper pipe up to Level 4 of the building.
Mr Derbas and Mr Zarkos heard a loud explosion and Mr Derbas ran into the building and found Mr Ilioglou conscious inside. Mr Derbas saw that Mr Ilioglou had red eyes and appeared to be in shock.
The contact of the copper pipe with the high voltage power lines caused an electrical explosion and caused Mr Ilioglou to be thrown back from the balcony edge towards the building.
[9]
Injuries
The contact of the copper pipe with the 11Kv overhead electrical conductors caused Mr Ilioglou to sustain electrical shock, arc flash injuries to his eyes and severe burns to his left hand and fingers.
Assistance and first aid were provided to Mr Ilioglou by other workers and he was taken to the Site office below. Mr Ilioglou then walked up the road, with the assistance of Ms Kayrouz, Mr Derbas and Mr Zarkos, to the emergency department of the nearby St George Hospital for treatment. He was triaged at 8.25am.
At the time of the incident, the contact of the pipe with the 11kV overhead main conductors caused traffic lights at the intersection of Gray Street and Princes Highway to cease working. Police Highway Control took over traffic control until the traffic lights were restored.
The incident caused protection to operate at Kogarah Zone Substation which led to an outage of an 11Kv feeder, including distribution stations, for up to 100 minutes.
[10]
Guidance Materials
Clause 166(1) of the Work Health and Safety Regulation 2011 (NSW) provided that:
"a person conducting a business or undertaking (PCBU) at a workplace must ensure, so far as is reasonably practicable, that no person plant or thing at the workplace comes within an unsafe distance of an overhead or underground electric line."
Clause 166(2) of the Regulation provided that:
"if it is not reasonably practicable to ensure the safe distance of a person, plant or thing from any overhead or underground electric line, the PCBU at the workplace must ensure that: 1. a risk assessment is conducted in relation to the proposed work; and 2. control measures implemented are consistent with: i. the risk assessment; and ii. if an electricity supply authority is responsible for the electric line, any requirements of the authority."
Clause 299(1) of the Regulation provided that:
"a PCBU that includes the carrying out of high risk construction work must, before high risk construction work commences, ensure that a safe work method statement for the proposed work: a. is prepared; or b. has already been prepared by another person."
Under cl 291(k) of the Regulation "high risk construction work" included work that: "is carried out on or near energised electrical installations."
The WorkCover Code of Practice Work Near Overhead Power Lines dated July 2006, was available on the SafeWork NSW website prior to the incident. The Code applies to work carried out near overhead power lines and provides guidance on risk management principles and safe approach distances to live electrical conductors. It defines the approach distance as the minimum separation in air from an exposed overhead conductor that must be maintained by a person, or any object held by or in contact with that person. The Code specifies the approach distance for work performed by "ordinary persons" as three metres for work near power lines of up to 132,000 volts. According to the Code, an ordinary person is a person without sufficient training or experience to enable them to avoid the dangers which overhead power lines and associated electrical apparatus may create.
The Australian/New Zealand Standard 4576:1995, Guidelines for scaffolding dated June 1995 was also available.
[11]
Systems in place before the Incident
At the time of the incident Kayrouz had in place a Work Health and Safety Management Plan ("WHS Management Plan") dated 19 September 2014 for the construction project at the Site, as required by cl 309 of the Regulation.
The hazard of working near overhead power lines was identified in the WHS Management Plan and specified that "prior to any work near overhead power lines it is essential that the height and voltage of the overhead power lines (and if applicable the horizontal safety clearance) be assessed at the worksite. Increased clearances must be allowed where a risk assessment identifies a reasonable possibility of the load or lifting gear (crane hook, chains, slings) moving or swinging toward the overhead power lines".
The WHS Management Plan incorporated the guidelines set out in the 2006 Code of Practice on Work Near Overhead Power Lines.
The WHS Management Plan also addressed work involving scaffolding near overhead power lines and referred to the Australian/New Zealand Standard 4576:1995, Guidelines for scaffolding, June 1995. By this standard a four metre approach distance must be provided for metal scaffolding used near overhead power lines.
Kayrouz was aware of the risks associated with the construction activities being carried out in close proximity to the high voltage overhead power lines. It arranged for SafeWork NSW approved scaffolding to be erected along the Gray Street side a year prior to the incident, as well as de-energising the power lines when the scaffolding was erected. The scaffolding was around two metres in distance from the high voltage power lines and 2.8 metres from the low voltage power lines on the street frontage of the Gray Street side.
In correspondence dated 9 November 2015 from Ausgrid to Ms Kayrouz, Ausgrid advised that the Principal Contractor and the person responsible for scaffolding were required to comply with the Regulation and the Code. Ausgrid advised that the nominal voltages of the overhead mains and conductor type at 71 Gray Street Kogarah were Low Voltage ABC 415 volts and High Voltage Bare Conductor 11,000 volts.
Ausgrid outlined the requirements to be taken when erecting and dismantling scaffolding near overhead power lines which stipulated the use of tiger tails and a risk assessment for the low voltage lines, a risk assessment for the high voltage power lines, and the need for isolation. An Ausgrid permit was required. Kayrouz Constructions followed these procedures.
[12]
Steps taken following the Incident
After the incident Kayrouz prepared an incident report ("the Incident Report"). The Incident Report specified the following steps to take place:
1. As part of the site specific induction, a new site rule had been included: "No objects are to be handled on the Gray Street frontage near the overhead power lines no matter how far the distance".
2. A site foreman called a toolbox talk with all plumbers to remind them of the rules when working near overhead power lines and of reckless behaviour.
3. A brief meeting with the head of trades was called to remind all workers of the dangers associated with working near power lines.
4. Checking on Mr Ilioglou regularly at the hospital to ensure his condition was monitored.
On 21 November 2016 SafeWork NSW issued a Prohibition Notice on Kayrouz to cease the activity of lifting copper pipes in close proximity to the high voltage power lines.
On 24 November 2016 SafeWork NSW issued an Improvement Notice to Kayrouz to ensure compliance with a SWMS for identifying and having in place control measures when handling materials in close proximity to energised overhead power lines.
On 23 November 2016, Ms Kayrouz conducted a site specific risk assessment. The site specific risk assessment outlined the following controls to be undertaken by 30 November 2016:
1. Checking all relevant trades SWMSs.
2. Carrying out toolbox talks with trades that could be working near overhead power lines, emphasising the risks and hazards.
3. Creating a new site rule that the Gray Street balconies are not to be used for handling of any materials.
Additionally, the following steps were taken after the incident:
1. Kayrouz held a meeting with all contractors to remind them that no materials were to be handled on the Gray Street side of the building. In compliance with the Improvement Notice, Kayrouz instructed contractors to add a thorough section to their SWMS regarding working near overhead power lines.
2. On all construction sites, Kayrouz now provides both hard and soft copies of the WHS Management Plan to all employees and subcontractors.
3. On all Kayrouz projects induction is now a more thorough process involving a colour co-ordinated sticker system to identify those who have completed the induction requirements.
4. The Kayrouz WHS Management Plan is reviewed annually and updated accordingly.
5. Kayrouz now ensures that there is thorough signage detailing the danger of overhead power lines above. This is emphasised during the induction process.
6. Kayrouz now conducts and documents weekly toolbox talks.
[13]
Documentary Evidence
The prosecutor tendered a Prosecution Sentence Tender Bundle (PX 1) comprising the Joint Schedule dated 19 May 2020, a series of photographs taken by a SafeWork NSW inspector, a Prohibition Notice, an Improvement Notice, a SWMS dated 7 December 2016, documents produced by the defendant in response to a s 155 Notice, a prior convictions report, and the WorkCover Code of Practice Work near overhead power lines July 2006.
The prosecutor tendered a written quotation dated 1 February 2016 from Spectra to the developer Majenttas for the plumbing work at the Site at 187 Princes Highway, Kogarah (PX 2).
The prosecutor tendered a s 155 Notice to Ausgrid and an Ausgrid investigation report (PX 3). This set out details of the interference with the Ausgrid service caused by the incident on 21 November 2016.
The prosecutor tendered a plan of the Site, showing the building and the surrounding streets, in particular Gray Street and Princes Lane (PX 4). During the course of the hearing this was marked by various witnesses.
The prosecutor tendered a Toolbox Talk record dated 23 November 2016 (PX 5). Ms Kayrouz conducted the talk after the incident and made the following written note on the record:
"* No handling of materials around the power lines on Gray Street - strictly prohibited.
* Copper pipes to be lifted through the fire stairs.
* Keep within safe proximity from power lines at all times."
[14]
Michel Ayoub
The prosecutor called Mr Michel Ayoub as the first witness. Mr Ayoub gave the following evidence. He was the Director and sole shareholder of Spectra. He was shown the quotation letter which Spectra gave to Majenttas (PX 2). He was approached to start the work by Ms Natalie Kayrouz. He was paid for the work by Mr Toufic Kayrouz. On 20 November 2016 (the day before the incident) he spoke to Mr Kayrouz, who he understood to be the builder/developer. Mr Ayoub said that he would be working on the upper levels with copper pipes for water and gas. He told Mr Kayrouz that there would be a delivery the next day of six metre lengths of copper pipe.
Mr Ayoub said that he expected that the delivery would have arrived in Princes Lane. He was not there at 7.00am when the delivery arrived. In the past Mr Ayoub had moved copper pipes into the building by manual handling through the driveway and into the basement adjacent to Princes Lane. On those occasions his workers had to cut the pipes to size to manually carry them to the upper levels via the internal staircase.
Mr Ayoub said that on 20 November 2016 the driveway was "a little bit overfilled with rubbish" and there was a skip bin in the driveway. He also said that when he attended on 21 November 2016 after the incident, the driveway was "still a little bit overfilled".
Mr Ayoub said that when he started on the job he was given no instruction and no induction form. He was not shown a risk assessment and he was not given any instruction or SWMS about power lines. He was not shown any policy or procedure of the defendant in relation to power lines.
Mr Ayoub said that his company was working at the Site for 11 to 12 months prior to November 2016. The job was 80% complete by November 2016.
Mr Ayoub was asked whether Mr Kayrouz had told him not to do any work from Gray Street. He denied that this had been said. He was asked whether he recalled Mr Kayrouz saying that pipes should be delivered by crane or carried through the fire stairs. He denied that Mr Kayrouz had said this. Mr Ayoub was asked whether Mr Kayrouz had told him to keep away from Gray Street. He denied this. Mr Ayoub was asked whether Mr Kayrouz told him he should not handle any material on the balconies. He denied this. Mr Ayoub was asked whether Mr Kayrouz had told him only to use Princes Lane as a loading area. Mr Ayoub recalled being told that a mobile crane could be set up to lift material from Princes Lane. Mr Ayoub denied being given an induction by Mr Kayrouz. He denied that there were any written rules on the Site. Mr Ayoub accepted that he was told that he should notify Ms Kayrouz or Mr Kayrouz if anything was unsafe. He was asked whether he was told not to touch the scaffold, and he denied this.
[15]
Christopher Ilioglou
Mr Ilioglou had been working for Spectra for about a year prior to November 2016. He was either not licensed at that time or had just obtained his licence. Mr Ilioglou said that he never had a site safety induction conducted by the defendant. He never saw a risk assessment. He never saw a SWMS. He never saw any document concerning overhead power lines.
On 21 November 2016 Mr Ilioglou was working on the top floor. He received a phone call from another worker to assist in carrying pipes up the side of the building. This was on the Gray Street side. He did not notice the power lines that morning. He knew they were there but he did not take in the fact that they were there. The sun was rising ahead of him which would have affected his ability to see the power lines. Mr Zarkos, an apprentice, handed the first pipe from Ground Level up to Mr Derbas, who was standing on a balcony on Level 2. Mr Derbas then handed the pipe up to Mr Ilioglou who was on the balcony on Level 4.
Mr Ilioglou hauled the first pipe up and levered it across the balcony rail to get it to Level 4. The first pipe hit the power lines. He was knocked inside the building and was unconscious. Mr Ilioglou recalled that some work had not been completed on that level and the pipes had to be put in the ceiling on Level 4.
Mr Ilioglou returned to the Site in March 2017. He was asked to sign paperwork including a SWMS and induction papers. Ms Kayrouz brought them to him to sign. He was asked to go through the paperwork and start signing. He signed each paper. This took him about 20 minutes. He did not recall Mr Kayrouz being there when this paperwork was done.
Mr Ilioglou indicated that it was his left hand which had been shocked and burned in the accident. The left hand was now not as strong as it had been before the incident. When he first came back to work he did testing and other light work.
In cross-examination Mr Ilioglou said that he had been working on the Site for about a year before the accident. He recalled that the Gray Street side was covered in scaffolding, and that the scaffolding was covered by plywood and mesh. This was there until about September 2016. He said that no material was moved via the Gray Street side of the building because of the scaffolding. Mr Ilioglou said that he was on the Site a lot.
[16]
Vlasios Zarkos
Mr Zarkos had been employed as an apprentice plumber by Spectra for three to four months prior to 21 November 2016. He said that he did not receive an induction by the defendant. After the incident he was asked to go to the Site a couple of days later and fill out paperwork. The contents of that paperwork was never explained to him. He was never given a SWMS or a risk assessment to read or sign. He was given no training by the defendant about working near power lines.
Mr Zarkos recalled that the six metre lengths of copper pipe arrived between 7.30am and 8.00am on 21 November 2016. Mr Derbas told him they had arrived. He regarded Mr Derbas as the Site Supervisor.
On the plan of the Site (PX 4) Mr Zarkos marked with an "X" where he was standing to hand the pipes up from Gray Street. Mr Derbas told him that he needed to get them up the side of the building.
Mr Zarkos was standing on the ground and he handed the first pipe to Mr Derbas who was standing on a balcony above him. Mr Derbas then passed the pipe up to Mr Ilioglou who was on a higher balcony. He heard the pipe hit the power lines and he ran for cover. He then ran up to Level 4 to assist Mr Ilioglou. He went to St George Hospital with Mr Ilioglou and Ms Kayrouz.
Mr Zarkos said that a few weeks earlier, he, Mr Derbas and a third person (who was not Mr Ilioglou) had passed copper pipes up the side of the building on Gray Street. Mr Zarkos stood at the highest point and received the pipes. He noticed that the power lines were there. He lifted the pipes on an angle and passed them over the balcony to keep the pipes away from the power lines. More than one pipe was moved up.
In cross-examination Mr Zarkos said that he started work for Spectra in October 2016 and that he worked on one other site for Spectra. Mr Ayoub told him to go to the Site and see Mr Derbas. He did not go to the site office. He said "I just started plumbing". Mr Derbas was the Site foreman.
Mr Zarkos had not seen pipes carried in through the internal stairs. He did not recall how pipes were delivered to Princes Lane. In Princes Lane there were no power lines. Mr Derbas did not say to use Princes Lane for deliveries.
On 21 November 2016 Mr Zarkos recollected that Princes Lane was closed, as it had been dug up. He knew that he could not park there on that day.
[17]
Mohieddine Derbas
Mr Derbas was not called to give evidence.
[18]
Documentary Evidence
The defendant tendered a folder (DX 1) containing five affidavits:
1. Affidavit of Yonghang Wang dated 7 February 2020.
2. Affidavit of Omer Maarbani dated 7 February 2020.
3. Affidavit of Natalie Kayrouz dated 10 February 2020.
4. Affidavit of Toufic Kayrouz dated 10 February 2020.
5. Affidavit of Natalie Kayrouz dated 1 September 2020.
The affidavits will be summarised later in this judgment.
The defendant tendered a police photo of the front of the building taken from Gray Street (DX 2). The photo shows the wire fence along Gray Street. There was a gap in the fence but the evidence is that this was opened on the day to permit access to the Site after the incident. The power lines can be seen adjacent to Gray Street. On the lower level of the power pole are the low voltage lines which are encased in black and yellow tiger tails. On the upper level of the power pole are the high tension lines which are not encased or marked in any way. These high tension lines appear to be adjacent to the base of the balcony on Level 4 of the building.
The defendant tendered a copy of a sign which was said to be affixed to the front fence (DX 3).
The defendant tendered a Chronology in relation to the contact between Ausgrid and the defendant (DX 4). This Chronology was tendered by consent in lieu of the voluminous material produced on subpoena by Ausgrid. The defendant's WHS Management Plan was created on 19 September 2014 and identified the overhead power lines. It set out a "No Go Zone". It identified the risk of common construction hazards involving electricity.
Ausgrid conducted a site visit on 6 November 2015 and identified the need to de-energise the high voltage lines so that scaffolding could be erected. Ausgrid gave permission for such erection on 9 November 2015. On 1 December 2015 the high voltage lines were isolated and the scaffolding was erected. It remained in situ until 16 September 2016. On this date the high voltage lines were again de-energised and the scaffolding was removed.
The defendant tendered an extract from certain answers given by Mr Ayoub to an inspector from SafeWork NSW (DX 5). These were the matters put to him in cross-examination, with which he agreed.
The defendant tendered a further affidavit of Mr Kayrouz dated 17 February 2021 (DX 6). This went to a request by the defendant for any fine imposed to be paid by instalments. This is a matter to be considered by the Registrar and the Regulator, and not by the court. It was appropriate however to put it on the record.
[19]
Natalie Kayrouz
Ms Kayrouz affirmed her first affidavit on 10 February 2020 and her second affidavit on 1 September 2020. As mentioned earlier in this judgment, Ms Kayrouz is the Project Manager of Kayrouz.
In her first affidavit, Ms Kayrouz stated that she has a Bachelor of Construction Project Management from the University of Technology Sydney, as well as a building licence. She has worked at Kayrouz, her family's business, since 2013. Prior to this, she worked elsewhere for eight months.
Ms Kayrouz said that during the project, she was at the Site Monday to Saturday from 7.00am until 4.00pm. Ms Kayrouz said that when a worker started working on the Site they were informed of work health and safety policies which included: (a) a site specific safety induction; (b) identification of the location of site sheds, lunch rooms and first aid facilities, (c) incident/potential incident reporting requirements; (d) unsafe area reporting requirements; (e) access gate requirements; (f) expected working hours; (g) requirement not to remove any safety facilities.
Ms Kayrouz was in charge of deliveries management, crane bookings and skip bin bookings. In her affidavits, Ms Kayrouz detailed the various dates on which she arranged crane bookings, skip bin picks ups and replacements.
At all the inductions, Ms Kayrouz always said: "All deliveries must be taken on Princes Lane. That is where the loading dock, loading platform and mobile crane will be. If you are getting a delivery, you must book the delivery in with me each week so that I can organise a mobile crane as well as a permit from the Council".
Ms Kayrouz explained that before the incident happened, Level 4 at the Site was a working area. Scaffolding and timber hoarding blocked off the entire Gray Street perimeter of the Site four metres above and four metres below the high voltage lines and tiger tails were installed on low voltage power lines with the authorisation of Ausgrid. On the day of the incident all the remaining work to be completed by contractors and employees was at a safe distance (six metres away) from the power lines. Access to the building was through Princes Lane or internally.
Ms Kayrouz was in her office at the Site when the incident occurred. She explained that she did not authorise Spectra's presence in the area where the incident occurred, nor was she informed of the delivery of pipes that day or how they were being transferred to the Site.
[20]
Toufic Kayrouz
Mr Kayrouz affirmed an affidavit on 10 February 2020. As mentioned earlier in the judgment, he is a Director of Kayrouz along with his wife. Mr Kayrouz has been a builder for 50 years. Mr Kayrouz stated that his company works on one job at a time and so he worked on the Site full time until the building of the residential units was complete.
Mr Kayrouz said that he and his daughter provided inductions to all the different types of workers on site which covered: (a) main safety concerns; (b) rules on the Site; (c) entry and exit points; (d) first aid; (e) telling workers to notify either Ms Kayrouz or himself if they see anything unsafe; (f) telling workers to not touch any of the scaffolding; (g) where amenities such as toilets and lunch rooms were. Mr Kayrouz remembered that in the induction with Spectra workers he said: "You should only use Princes Lane as a working area, there is a loading dock, loading area and a mobile crane can be set up in this area. You should not ever use Gray Street because there are overhead power lines there and it is not safe".
Mr Kayrouz explained that he usually was on the Site from 7.00am so that subcontractors could ask any questions they needed to and he spoke to the head of each of the subcontractors every day about their progress. He held informal meetings with all workers every few weeks where issues such as safety concerns and upcoming deliveries were discussed.
Mr Kayrouz said he walked through the Site daily, supervised the various contractors, and directed all movement in and out of the Site to occur through Princes Lane. He recalled that on several occasions, he advised the Spectra workers that "Gray Street was not a working area. Keep away from Gray Street because there were high voltage lines. They should not handle any material on balconies". In relation to delivery of pipes generally, Mr Kayrouz said he told Mr Ayoub on many occasions that pipes should be delivered either by mobile crane or otherwise broken up and carried through the fire stairs.
After the scaffolding was erected on the Gray Street side, Mr Kayrouz said he met with all the workers and told them: "The scaffolding is up now and it is safe to work on the Gray Street side of the building. However you should still stay clear and not walk or work in the scaffold area unless it is absolutely necessary. You should still use Princes Lane to move materials". Mr Kayrouz said that workers continued to use Princes Lane when the scaffolding was up. After the scaffolding was removed, Mr Kayrouz said he told workers the following: "Do not do any work from the Gray Street side at all, this is a finished area".
[21]
Yonghang Wang
Yonghang (Leo) Wang affirmed an affidavit on 7 February 2020. He is a Gyprocker and the Director of Hippo Building Ltd. In June or July 2015, Mr Wang was engaged by Kayrouz to carry out the gyprock work at the Site including suspended ceilings, partition walls and external walls.
Mr Wang stated in his affidavit that on his first day on the Site he attended an induction for gyprockers with both Ms Kayrouz and Mr Kayrouz. Mr Wang stated that there were different workers attending the Site on different days and each one went to an induction on their first day at the Site. He remembered that the induction included being: (a) told the locations of the Site office, entry gate and exit, emergency exit points, bathroom and the lunchroom; (b) run through safety procedures including PPE, tool safety checks, the gyprock cutting room, dust & waste management; (c) notified of the need provide their SWMS to Mr Kayrouz before starting the job; (d) advised that there would be access to a work health safety plan; (e) told that all deliveries needed to be booked with either Mr Kayrouz or Ms Kayrouz at least one week in advance so that a crane could be organised and a Council road lane closure arranged; (f) told that they would need to advise Mr Kayrouz what materials were going to be delivered; (g) informed that there were power lines on Gray Street, to be careful of the power lines on Gray Street and to not bring deliveries onto that side of the street; (h) told that materials were only supposed to be delivered on the Princes Lane side.
Mr Wang stated that at the beginning of the job he had four to six workers on the Site. This was increased to 20-30 workers when work got underway.
Mr Wang felt that the Site was "good and safe to work in". He said he knew about safety procedures and no injuries were suffered by himself or his workers on the Site. Mr Wang said he saw Mr Kayrouz and Ms Kayrouz every day that he was at the Site. When his workers asked questions that he could not answer, he referred them to Mr Kayrouz. He stated that he "always had access to Princes Lane and could always access the development from Princes Lane". Mr Wang went on to say there was no obstruction to prevent materials being taken from the Princes Lane into the building.
Mr Wang did not see the incident involving Mr Ilioglou but recalls having a conversation with Mr Kayrouz after the incident when Mr Kayrouz told him to be careful at the Site and went through safety requirements again. Shortly after this conversation, Mr Wang held a toolbox talk with Ms Kayrouz and Mr Kayrouz for his workers about the safety at the Site.
[22]
Omer Maarbani
Omer Maarbani swore an affidavit on 7 February 2020. He is a formworker and the owner of D&J Formwork. Mr Maarbani and several of his employees worked at the Site but he could not remember the exact dates he was there. Mr Maarbani finished his work prior to the date of Mr Ilioglou's accident.
In his affidavit, Mr Maarbani stated that on his first day at the Site he and his employees received an induction from Ms Kayrouz and Mr Kayrouz. He remembered that the following topics were discussed: (a) where everything was located; (b) what to do in case of an emergency, including being told to go to the site office if an accident occurred and being shown the location of the hospital; (c) informed that all deliveries were to come to Princes Lane and to notify Ms Kayrouz or Mr Kayrouz at least three to four days earlier if it was "a big delivery so that they could close Princes Lane and hire a mobile crane for the day"; (d) Gray Street was not to be used for any deliveries as it was a 'no stopping area' and there were high voltage power lines there.
Mr Maarbani stated that he had at least 10 to 15 of his employees on the Site each day and on some days there were 25 of his workers on the Site. He said that he was personally on the Site every day and met with Mr Kayrouz every morning to discuss the formwork and safety procedures. Mr Maarbani stated that the Site "seemed to me like a safe place to work" and there were no accidents suffered by himself or his workers. He said that he always had access to the Site through Princes Lane and never saw any obstruction to moving material through Princes Lane.
Mr Maarbani was not required for cross-examination. It is noted that he says nothing about the inductions or the safety discussions being documented or signed off.
[23]
Resolution of the Disputed Facts in Issue
The Joint Schedule characterised facts as agreed, not agreed and contested. For the purpose of this judgment, facts that are not agreed or contested by the defendant will be referred to collectively as disputed facts.
The disputed facts are set out below together with the finding of the court in relation to each fact:
1. Mr Ayoub's day to day involvement with the company was managing the company and working as a licensed plumber (Joint Schedule, par 12). Proved by the unchallenged evidence of My Ayoub.
2. On 1 February 2016, Spectra submitted a quotation to Majenttas for the plumbing work for the project in the sum of $695,000. Under the scope of works provided in the quote, Spectra was responsible for supply and installation of hot and cold water pipe reticulation, drains and other associated plumbing (Joint Schedule, par 17). Proved by PX 2.
3. On 21 November 2016, Spectra was finishing off the installation of cold water pipes on Level 4 of the building (Joint Schedule, par 27). Proved by the evidence of Mr Ilioglou, Mr Zarkos and Mr Kayrouz.
4. The task involved the workers manually lifting the copper pipes up to Mr Ilioglou on Level 4 of the building by passing them up outside of the building along the Gray Street side of the building. This process involved Mr Zarkos standing on the Ground Level vertically passing the copper pipes to Mr Derbas standing on the Level 2 balcony who would relay the copper pipes to Mr Ilioglou who was standing on the balcony of Level 4 of the building. All the balconies faced the Gray Street side of the building (Joint Schedule, par 32). Proved by the evidence of Mr Ilioglou and Mr Zarkos.
5. As the first copper pipe was passed up to Mr Ilioglou from Mr Derbas, Mr Ilioglou took hold of the copper pipe with his left hand while standing on the balcony of Level 4. In an attempt to lift the pipe into the building, Mr Ilioglou levered the pipe against the top rail of the balustrade of the balcony, when it came into contact with the energised high voltage overhead power lines while the pipe was still in his grasp. Mr Ilioglou was thrown back from the balcony into the building (Joint Schedule, par 33). Proved by the evidence of Mr Ilioglou and Mr Zarkos.
6. The contact of the copper pipe with the 11Kv overhead electrical conductors caused significant arcing which damaged the overhead conductors and were required to be repaired by Ausgrid. The contact also made two holes in the balustrade of the Level 4 balcony where the pipe was resting (Joint Schedule, par 34). Proved by PX 3 and the photographs in PX 1.
7. On 20 November 2016, the day before the incident, Mr Ayoub and Mr Kayrouz had a discussion about the outstanding work required to complete installation and connection of the mains water service on Level 4 of the building (Joint Schedule, par 51). Not proved as the evidence of Mr Ayoub in relation to this conversation is impossible to accept. 20 November 2016 was a Sunday and the Site was not open. (This fact was important in the assessment of the objective seriousness of the offence.)
8. On the day prior to the incident, Mr Ayoub and Mr Kayrouz discussed the outstanding work that was required, at the Site, to complete the connection of the water mains on Level 4 of the building (Joint Schedule, par 54). Not proved for the same reasons. (This fact was important in the assessment of the objective seriousness of the offence.)
9. On the day of the incident, Mr Derbas and Mr Zarkos, decided to manually lift the pipes up on the Gray Street side having previously done so a couple of weeks ago in the same manner (Joint Schedule, par 56). Proved in that Mr Derbas decided to do this. Mr Zarkos did as he was told.
10. A couple of weeks prior to the incident Mr Derbas, Mr Zarkos and another worker engaged in the same activity on the Gray Street side of the building (Joint Schedule, par 57). Proved by the evidence of Mr Zarkos.
11. On that prior occasion, Mr Derbas and Mr Zarkos took up four or five six metre lengths of copper pipe using the same method used on the day of the incident. Mr Zarkos states that on that occasion he was standing on the Level 4 balcony and was aware of the high voltage overhead power lines and that when handling the copper pipes, he would "twist the pipe sideways" so that it would not go near the power lines (Joint Schedule, par 58). Proved by the evidence of Mr Zarkos.
12. At the time of the incident, it was the first time that Mr Ilioglou had been involved in lifting copper pipes up the outside of the Gray Street façade of the building. Mr Ilioglou states that the task of lifting pipes up onto floors of the building was usually undertaken from the Princes Lane side as there no scaffolding or rubbish in the way (Joint Schedule, par 59). Proved by the evidence of Mr Zarkos.
13. However, on the date of the incident, the Princes Lane side of the building was inaccessible because of rubble and other construction debris (Joint Schedule, par 60). Not proved. Nobody said this. (This fact was important in the assessment of the objective seriousness of the offence.)
14. There was no risk assessment conducted by Kayrouz for the task of transporting the copper pipes from the ground floor to Level 4 of the building (Joint Schedule, par 62). Proved, but noted that no such risk assessment was done as the defendant had no knowledge that Mr Derbas would undertake such a foolhardy operation.
15. There no safe work method statement or any safe work procedure prepared by Kayrouz Constructions for the task of transporting the copper pipes from the ground floor to Level 4 of the building (Joint Schedule, par 63). Proved but noted as above.
16. While the requirement for induction was contained in Kayrouz's WHS Management Plan, Mr Ilioglou, Mr Derbas and Mr Zarkos did not receive any site induction training or work health safety induction prior to the incident (Joint Schedule, par 65). Proved in respect of Mr Ilioglou and Mr Zarkos, by their evidence to that effect.
17. There was no training, information or instruction provided by Kayrouz to Spectra workers, including Mr Ilioglou, in relation to working near overhead power lines (Joint Schedule, par 66). Proved in respect of Mr Ilioglou and Mr Zarkos, by their evidence to that effect.
18. At the time of the incident Mr Ilioglou was unaware of any policies or procedure requirements from Kayrouz in relation to tasks near overhead power lines (Joint Schedule, par 67). Proved by the evidence of Mr Ilioglou.
19. Mr Ayoub was aware of the presence of overhead power lines at the workplace as he was aware that WorkCover had attended the Site and provided information to Kayrouz and the scaffolder about protecting the scaffolding from the power lines, approximately one year prior to the incident (Joint Schedule, par 69). Proved by the evidence of Mr Ayoub and Ms Kayrouz.
20. Mr Ayoub had arranged for the delivery of the pipes and had notified Toufic Kayrouz the week prior to the incident that Spectra would be working on Level 4 of the building (Joint Schedule, par 70). Proved that Mr Ayoub arranged for delivery of the pipes, by his own evidence. Not proved that Mr Kayrouz was notified as alleged, because of the credibility findings above regarding Mr Ayoub. (This fact was important in the assessment of the objective seriousness of the offence.)
21. A day or two before the incident Mr Ayoub did a Site visit and spoke to Spectra at the Site about the work to be carried out, however there was no discussion about how the workers would get the copper pipes to Level 4 of the building (Joint Schedule, par 71). Not proved because of the credibility findings above regarding Mr Ayoub.
22. Following the incident, the construction waste materials and rubbish, that were inhibiting access to the Princes Lane side of the building, were cleared and waste materials were removed from the Site to allow access to the area (Joint Schedule, par 77). Not proved as no-one said this. (This fact was important in the assessment of the objective seriousness of the offence.)
23. The process of completing the work on Level 4 occurred after the rubble was cleared up on the Princes Lane side of the building. The copper pipes were manually handled up the outside of the building to Level 4 on the Princes Lane side where there were no power lines. This was completed by Mr Derbas and two other workers (Joint Schedule, par 78). Not proved as no-one said this.
[24]
Reasonably Practicable Measures Established by the Evidence
As previously recited the defendant accepted that it failed to take the measures particularised in subpars (c), (e) and (g) in par 10 of the Summons.
Paragraph 10(a) of the Summons pleaded that the defendant should have taken the following measure:
"(a) conduct a risk assessment or ensure that a risk assessment had been conducted of the hazards involved in the task of manually lifting 6-metre lengths of copper pipes from the ground floor to the upper levels of the building (the task), in particular, a risk assessment which identified the risk of the copper pipes coming into contact with high voltage power lines at the site if the task was performed on the Gray Street side of the building and the control measures to eliminate or minimise the risk, in accordance with clause 166 of the Work Health and Safety Regulation 2011 (the Regulation);"
Once the scaffolding was removed, the building was still in the course of construction. There was a fence or barricade erected along the Gray Street side of the building. However, workers might have accessed the Gray Street side of the building for any number of purposes. As demonstrated by the facts in this case, the plumbers might seek to pass copper piping up the side of the building. The painters were still on the Site, and it is conceivable that they could have used a scissor lift from the Gray Street side to try to access upper levels. Landscapers were still on the Site, and they might have used a crane to lift some garden feature into place. While par 10(b) of the Summons is cast in terms of a specific risk assessment in relation to manually lifting copper pipes from the Gray Street side of the building, the general and continuing nature of the risk arising from the power lines being very close to the Gray Street side of the building required a risk assessment to be carried out. While one was done in the early stages of the building project, Ms Kayrouz did not turn her mind to any continuing risk, as she perceived there was no risk after the scaffolding came down. The risk may well have been much less after that time, but there was still a risk which should have been properly assessed.
I find that par 10(a) of the Summons has been established by the prosecutor.
Paragraph 10(b) of the Summons is in the following terms:
"(b) develop, implement and enforce a safe work procedure for undertaking work in the task that included:
i. using an alternative location or access route to transport the copper pipes from the ground floor to the upper levels of the building, such as, access from the Princes Lane side of the building; and/or
ii. arranging for the high voltage power lines to be de-energised while the task was being undertaken on the Gray Street side of the building; and/or
iii. arranging for a lifting device or equipment (such as a crane) to be made available to deliver the copper pipes to the upper levels of the building on the Princes Lane side of the building."
[25]
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).
[26]
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.
[27]
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].
The penalty must reflect the need for specific deterrence. Kayrouz is still conducting a business. Its operations involve construction of residential buildings and the continuing engagement of workers.
[28]
Aggravating Factors
The injury, emotional harm, loss or damage caused by the offence was not substantial in terms of s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. The prosecutor properly conceded that there were no aggravating factors.
[29]
Mitigating Factors
Kayrouz does not have a prior record of convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
Kayrouz is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. It has been in business for 37 years.
Kayrouz is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
Kayrouz 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 incident occurred.
Kayrouz 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 Ilioglou was caused by its actions.
Kayrouz 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.
Counsel for the prosecutor properly conceded that the plea of guilty was entered at an early stage. Attention was drawn to the decision of the Court of Criminal Appeal in R v AB [2011] NSWCCA 229. The court said:
"32. Likewise a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing.
33. These observations will have no application to the determination of the present Crown appeal. However, as a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and a consumption of public resources for a purpose ultimately determined adversely to an offender."
[30]
Parity
Spectra was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident in which Mr Ilioglou was injured. Spectra appeared before Scotting DCJ on 31 July 2019. On 12 August 2019 Spectra was convicted and his Honour imposed a fine of $200,000 reduced by 25% to reflect the guilty plea, plus costs of $23,000: SafeWork NSW v Spectra Plumbing Pty Ltd [2019] NSWDC 415.
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 The Queen [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 Spectra and Kayrouz. 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].
[31]
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."
There was no submission about capacity to pay, so this issue does not arise.
[32]
Costs
The parties wish to read and consider this judgment before dealing with costs. I will give the parties seven days to do so. If the parties fail to agree, they will have a further seven days to file a written submission on costs. Costs will then be dealt with on the papers.
I draw attention to my remarks above as to some important facts which are relevant to objective seriousness, and which the prosecution did not prove. While many of the disputed facts should have been admitted as they were uncontroversial, the defendant quite properly challenged some of the facts alleged by the prosecutor, and was successful in doing so.
[33]
Penalty
My orders are:
1. Kayrouz Constructions Pty Limited is convicted.
2. The appropriate fine is $80,000 but that will be reduced by 25% to reflect the plea of guilty.
3. Order Kayrouz Constructions Pty Limited to pay a fine of $60,000.
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. Reserve the question of the prosecutor's costs.
6. If the parties cannot agree on costs by 10 March 2021, direct that each party shall file written submissions on costs by 17 March 2021 and that the question of costs will then be determined on the papers.
[34]
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: 03 March 2021
On 11 May 2020 I granted a time extension to the prosecutor to file the Joint Schedule to 18 May 2020. On 20 May 2020 the matter was stood over for a Case Readiness Hearing before me on 15 September 2020.
The matter was subsequently listed for hearing before me in early December 2020. However, the matter had to again be vacated to February 2021 due to the Court being required to sit on an urgent matter in the Dust Diseases Tribunal of NSW concerning a terminally ill plaintiff.
The sentence hearing for this case was held on 17 and 18 February 2021.
The defendant admits that it is guilty of failing to comply with its duty by failing to take the reasonably practicable measures particularised in par 10(c), (e) and (g) of the Summons.
Thus the defendant puts the prosecutor to proof of the particulars in par 10(a), (b), (d), and (f) of the Summons.
Low voltage power lines were located below the high voltage overhead power lines on the Gray Street side and were affixed with "tiger tails".
On 26 November 2015 Mr Kayrouz and Ms Kayrouz sought, and were granted, Ausgrid access permits to erect scaffolding and hoarding near the high voltage power lines and signed off as acknowledging that they had been instructed in Ausgrid's access permit procedures.
Subsequently Kayrouz took the following steps in compliance with Ausgrid's requirements to manage the risks associated with the erection and dismantling of the scaffolding on the Gray Street side:
1. Ausgrid installation of tiger tails on the low voltage power lines on 11 November 2015.
2. Ausgrid isolation of the high voltage power lines on 1 December 2015 from 9.30am to 5.00pm to allow for scaffold erection.
3. Installation of approved plywood covering the perimeter of scaffold.
4. Ausgrid isolation of the high voltage power lines on 16 September 2016 to allow for scaffold removal.
Mr Ayoub arranged for the delivery of pipes to the Site. The instructions were for the pipes to be delivered to Spectra Plumbing Cnr Princes Highway Gray St Kogarah NSW 2487.
Mr Kayrouz was at the Site from 6.30am to 4.00pm every day. Ms Kayrouz was at the Site from 7.30am to 4.00pm every day.
In accordance with its WHS Management Plan, Ms Kayrouz was responsible for co-ordinating the work for projects to make sure they were carried out in the safest manner. Her responsibilities also included the preparation of a Project WHS Management Plan, risk assessments for each activity and Safe Work Method Statements (SWMSs).
It does not appear that any discussions were held between Mr Ayoub and Ms Kayrouz about the completion of the connection of the water mains on Level 4. Nor did Ms Kayrouz enquire as to the work to be performed by Spectra workers on the Site on the day of the incident.
Mr Ilioglou was aware of the presence of the low voltage power lines and high voltage power lines. However, Mr Ilioglou did not realise that the high voltage power lines were within six metres of him, which meant they could be struck by the copper pipe. Mr Ilioglou did not see the high voltage power lines because the sun was in his eyes at the time of the incident.
The WHS Management Plan (WHSMP) indicated that:
"All people working on site must complete a site-specific induction prior to commencing any work on site. This includes:
● Construction workers who are on site to complete works
● Trade supervisors and contract supervisors who will regularly carry out inspection/visits
● Consultants and clients who will regularly carry out inspections/visits...
The purpose of site specific induction is to familiarize people with:
● The hazards associated with construction work at this site
● Emergency Procedures
● Specific WHS requirements
● General site rules …
● Other site requirements including general rules, interaction within existing buildings or facilities and behavioural standards
● The contractors site staff."
Prior to the incident, Spectra conducted various risk assessments. However, nothing was formally documented. Mr Ayoub and Spectra's senior staff were responsible for WHS on the Site including safety training, provision of personal protective equipment and general safety of Spectra workers.
After the incident the pipes were transported to Level 4 so that the work could be done. They were not transported from Gray Street but from Princes Lane. Spectra was still doing work on the Site up to March 2017.
Mr Ayoub was shown a plan of the Site. He marked the driveway with "X" and the position of the skip bin with "O".
In cross-examination Mr Ayoub said that he discussed the job with Mr Kayrouz before he started. He was given a set of plans but this was not a complete set. The plans showed the Site and the surrounding streets. Mr Ayoub said he was not aware of the power lines before he started work. The initial work was done in 2015 in the basement. Scaffolding was put up in Gray Street and boarded with plywood. He could not recall whether the scaffold was wrapped.
Mr Ayoub accepted that he was told that deliveries had to be made to Princes Lane and to the site shed which was in the lane. Mr Ayoub accepted that a crane was provided from time to time to move materials from Princes Lane up into the building. Ms Kayrouz said from time to time that a crane would be available on a certain date if he wanted to move materials. There was also a platform adjacent to Princes Lane for loading materials. Mr Ayoub's material was always moved into the building from Princes Lane.
Mr Ayoub accepted that scaffolding was erected on the Gray Street side of the building until about September 2016. Material was never moved up into the building from Gray Street. Whenever he was on the Site, the only system for moving materials occurred via Princes Lane and the driveway from Princes Lane into the building. Mr Ayoub accepted that there was a fence along Gray Street which formed a barricade and prevented entry into the property from Gray Street. Mr Ayoub accepted that material was never moved from Gray Street due to the boarding on the scaffolding and the fencing.
Mr Ayoub said that his company had other jobs on at the same time. He shifted workers around between sites and he never told Mr Kayrouz or Ms Kayrouz when he had different workers at the Site.
Mr Ayoub accepted that he had meetings on site with Mr Kayrouz and Ms Kayrouz. He usually walked through the Site with Mr Kayrouz once a week. He spoke to Ms Kayrouz every day. He had both their mobile numbers if he needed to ring them.
Mr Ayoub said that he did not know which of his employees received the pipes. He was asked who was in charge for Spectra when he was not there and he said "no-one". Mr Derbas was not a licensed plumber. Mr Ilioglou was not in charge. Mr Ayoub said that he was the only person who gave directions to Spectra workers on the Site.
Mr Ayoub was asked about an interview conducted by SafeWork Inspector Fleming. He had told the inspector that he had never been directed to work near Gray Street. Mr Kayrouz and Ms Kayrouz had never told him to move goods from Gray Street. He never knew that his workers would move goods from Gray Street. His understanding was that previously, material had been moved into the building from Princes Lane and the driveway from Princes Lane into the building. He had always moved material through Princes Lane or internally through the driveway. Prior to 21 November 2016 no worker had ever told him of any problem on the Site.
Mr Ayoub was cross-examined about the conversation he asserted that he had with Mr Kayrouz the day before the incident. He maintained that he told Mr Kayrouz that the pipes would be delivered the next morning. It was suggested that he had this conversation a week before, and he said that that was not right, that it was the day before.
Mr Ayoub was shown some questions and answers in his interview with Inspector Fleming. He acknowledged that he was aware of the power lines at least one year before the incident. He acknowledged that he had told the inspector that his discussion with Mr Kayrouz about doing work on the upper levels occurred a week before the incident. He agreed that he had not told the inspector that the discussion was the day before the incident.
Mr Ayoub agreed that the work with copper pipes on Level 4 was intended to be done before removal of the scaffolding. He had not had pipes delivered to the Site because he was concerned about their security. After the incident he told his workers that they should have cut up the pipes and moved them up the internal staircase. He had expected them to do this without telling them.
In re-examination Mr Ayoub was shown question and answer 22 in an interview document. There he had told the interviewer that he had a conversation with Mr Kayrouz the day before the incident.
I hold serious doubts about the reliability of the evidence of Mr Ayoub. More than once he was forced to backtrack on an answer after being confronted with what he had told an inspector who investigated the incident. He was adamant that he went to the Site the day before the incident and told Mr Kayrouz that pipes would be delivered the next morning. That evidence is rejected as fabricated. The day before the incident was a Sunday. The Site was shut as Council did not permit work on a Sunday. I only accept the evidence of Mr Ayoub which was not challenged or was corroborated by the evidence of another witness.
Mr Ilioglou said that materials were always moved through Princes Lane. There was a crane there at times. He had moved pipes into the building once before and that was from Princes Lane.
Mr Ilioglou recalled that the contacts on the Site were Mr Kayrouz and Ms Kayrouz. He took all of his directions from Mr Ayoub.
Mr Ilioglou said that he did not recall if there was any induction given to him. Mr Ayoub did not give him an induction. He said that they just made decisions depending on where the work was to be done.
I accept the evidence of Mr Ilioglou in its entirety. His evidence was not challenged.
A few weeks before, when he and Mr Derbas had moved pipes up the side of the building near Gray Street, he had told Mr Derbas it was not safe. Mr Derbas had basically told him that he was an apprentice and he should do what he was told. He did not recall if there was access in Princes Lane on that day.
Mr Zarkos returned to the Site a few weeks later. He did not recall Mr Derbas telling him not to move materials from Gray Street. When he went back to the Site all the work was inside and there was no work done involving the Gray Street balconies.
I accept the evidence of Mr Zarkos, except in one respect. He is mistaken in his recollection that Princes Lane was dug up and closed off on 21 November 2016. Had that been so I would have expected a SafeWork inspector to have seen that. Further, there would have been Council documentation to show that a public road was blocked off.
Ms Kayrouz said that Spectra workers had been on Site on and off for 15 months prior to the accident and to the best of her knowledge, they had never undertaken deliveries by using the balconies on the Gray Street side. She stated that there was sufficient room to unload material from Princes Lane and there was no impediment to access.
In her affidavits, Ms Kayrouz detailed the steps she took after the incident including personally taking Mr Ilioglou to St George Hospital, participating in a meeting with Mr Kayrouz and Mr Ayoub to discuss what had occurred and she reviewed induction forms. Ms Kayrouz said she could not find induction forms for some of the plumbers and so asked them the following: "You've already been inducted, is it ok to back date this induction form, to show you've been inducted?" Ms Kayrouz explained that after she asked the plumbers this question she "realised it was not the right thing to do so I did not go ahead with it. I did not ask anyone else to back date forms".
In her affidavit, Ms Kayrouz expressed remorse. She said "I am very sorry that Mr Ilioglou was injured. I thought that because of the procedures we had in place with induction and my dad speaking to the contractors at the Site every day that would be enough to avoid accidents on the Site, but we should have had written procedures in place".
Ms Natalie Kayrouz was called to give oral evidence. She is the daughter of Mr Toufic Kayrouz. She was the Project Manager at the Site. She has a university degree in Project Management. This was her first full job for the defendant. There were no other sites being constructed by the defendant at the time. Mr Kayrouz and her father were on the Site full-time. She was aware that her father had used Mr Ayoub as a plumber before this job.
Ms Kayrouz was shown a police photo of the Gray Street side of the building (DX 2). She said that it showed the temporary fencing along Gray Street. The gap in the fence in the photograph was not there before the incident but the fence was opened up that day to permit investigation of the incident. She identified a white sign on the fence and a depiction of the contents of that sign (DX 3).
Ms Kayrouz said that she assisted her father with safety and was involved in the construction management and traffic plan. She decided to use Princes Lane for deliveries and access for a crane.
Ms Kayrouz dealt with Ausgrid regarding the scaffolding erected on the Gray Street side of the building. Ausgrid required the scaffolding to be encased in plywood. The high voltage lines were de-energised to erect the scaffolding and when the scaffolding was removed. She received training from Ausgrid in relation to the lines. The de-energisation of the lines had to be booked in for a couple of weeks before such event took place.
The scaffolding was erected on 1 December 2015 and was in place until it was removed on 16 September 2016. All of the work to be done on the Gray Street side of the property was completed by that time.
Ms Kayrouz was shown the plan of the Site (PX 4). She marked the site shed on Princes Lane and the later site office on the corner of Gray Street and Princes Lane. Ms Kayrouz was involved in managing deliveries. She would book in the deliveries with contractors, and when a crane was required she dealt with Council so that the lane could be closed temporarily for a crane to operate. All deliveries were made to Princes Lane. There was a loading dock or platform in Princes Lane. Princes Lane was not shut or closed on 21 November 2016. It was only ever shut when a crane was put in Princes Lane. Ms Kayrouz booked the cranes and told the contractors that deliveries should take place in Princes Lane. Gray Street was never used for any deliveries.
Ms Kayrouz said that when the scaffolding was in place it would have been impossible to move material up the face of the Gray Street side of the building.
A skip bin was kept in the driveway. This was 10 metres long. Ms Kayrouz inspected it every day. When it was full she had it changed over and it was replaced the same day. She did not see any rubbish on the ground near this bin.
Ms Kayrouz said that there was nothing stopping pipes being delivered into Princes Lane or being taken into the basement so they could be carried up the internal stairs.
Ms Kayrouz said that in an induction she carried out she told contractors to deliver to Princes Lane. From time to time she told Mr Ayoub when a crane was going to be available in Princes Lane. She organised a crane for 1 November 2016 and a crane for 29 November 2016.
Ms Kayrouz had conversations with Mr Ayoub on the Site and on the phone. When the scaffolding was taken down in September 2016, Ms Kayrouz thought that all the copper pipe work had been done in the ceiling on Level 4. However, she later went up there and saw that the ceilings had been opened up so that copper pipes could be installed. She then discovered that there was still work to be done by Spectra on Level 4.
Ms Kayrouz said that she never saw anyone move materials up the Gray Street side of the building. If she had seen anyone doing that she would have told them to stop immediately. Ms Kayrouz knew that there were overhead wires in Gray Street. After the scaffolding came down in September 2016 she did not think any more about the high voltage lines, as there was no work to be done adjacent to them. She did not think about doing a risk assessment or a SWMS in relation to the high voltage lines as everything on the Gray Street side had already been done.
Ms Kayrouz said that she had discussions with Mr Derbas. She told him to deliver goods to Princes Lane. She told him that he needed to contact her to book in a crane. She had discussions with Mr Derbas at the start of the job when the plumbing was to be started. She told him where the site shed was, what the hours were, how to book deliveries in, and that if there was anything unsafe he was to let her know.
The construction work was finished in March or April 2017. Some units were rented out in 2017. It was mainly defect work being done in the first few months of 2017.
After the incident, Ms Kayrouz realised there was a "shortcoming" in the paperwork. She could not find any induction paperwork. She created induction papers and suggested to workers that they fill them out and backdate them. She immediately realised it was wrong to ask anyone to backdate a document so she did not have that done.
Ms Kayrouz was shown the minutes of the toolbox meeting held on 23 November 2016, after the incident (PX 5). She told the workers at that meeting not to use the Gray Street side of the building for deliveries.
After the incident Ms Kayrouz said that she re-inducted the plumbers and anyone else for whom she could not find induction papers.
Ms Kayrouz said that she realised now that it was important to have toolbox talks which were documented. She also realised that everyone had to be inducted and had to sign induction paperwork.
In cross-examination Ms Kayrouz said that she thought she inducted Mr Ayoub and Mr Derbas, but she could not recall inducting Mr Ilioglou. She said that she might have missed a worker. There was no SWMS prepared by the defendant for plumbing work. Instead, Spectra had its own SWMS.
On the day of the incident Ms Kayrouz was in the site office. Any delivery of copper pipes would have come by truck. She did not know how these pipes were delivered to the Gray Street side.
Ms Kayrouz said that she did not specifically prohibit Spectra from working on the Gray Street side of the building. She had no discussion with Spectra as to how pipes were to be transported to Level 4. She never told Spectra to lift the material up the Gray Street side. She did not discuss how pipes were to be moved.
It was pointed out to Ms Kayrouz in cross-examination that Mr Zarkos had said that the same method had been used two weeks before i.e. moving the pipes by hand up the Gray Street side of the building. Ms Kayrouz said that she was not aware of this happening.
Ms Kayrouz said that she made sure to tell contractors that deliveries had to be made to Princes Lane and that they had to use the appropriate access point into the driveway. Ms Kayrouz said that if she saw a delivery being made to Gray Street she would have stopped it. She could have developed a written procedure. Ms Kayrouz was not aware of a risk assessment being done by Spectra.
Ms Kayrouz was asked whether she ever instructed Spectra employees not to work on the Gray Street side. She said "Yes", but then said that she did not remember when she told them. Ms Kayrouz said that she would not have said that after September 2016, as there was no work for anyone to complete on the Gray Street side after the scaffolding came down.
Ms Kayrouz is accepted as a credible witness. She was frank enough to make admissions that there were gaps in the documentation and in speaking to or inducting all of the workers on the Site.
Mr Kayrouz said he did not meet with Mr Ayoub on the day before the incident. He also stated that prior to the day of the incident, he regularly saw Spectra workers using Princes Lane to have materials delivered.
On 21 November 2016, Mr Kayrouz started work at or around 7.00am. Soon after arriving, he started his site walk through. He walked past the Spectra workers and noticed that they were working on the grounds of the Site safely, installing vanities and other prime cost items into the bathrooms. They were accessing the building from Princes Lane. He said there were also 12-15 other contractors on Site that day.
Mr Kayrouz stated that were two fire stair exits on Princes Lane. He said that Spectra workers could carry the pipes through the fire stairs and could also use the driveway on Princes Lane to access the fire stairs. He went on to explain that the internal area of the building could also be accessed through a sliding door on one of the units on Princes Lane. When materials were bulky, he said that Kayrouz organised a crane to lift the materials.
Mr Kayrouz said that "no-one from Spectra said anything to me about the delivery of a pipe that day". At the time that Mr Ilioglou's accident occurred, Mr Kayrouz was overseeing the painters.
He stated that the defendant has been in business for 37 years and has completed over 30 medium sized high rise residential apartment developments. The incident was the only occurrence of a serious injury on a Kayrouz site.
Mr Kayrouz said that he takes safety very seriously and he expressed sadness about Mr Ilioglou being injured. He said that he wants all Kayrouz workers and subcontractors to be able to do their work safely and wants to make sure that workers are protected from any risk of injury from overhead power lines. Mr Kayrouz said "We believed we had taken all measures to protect workers and subcontractors by the arrangements we had put in place for Gray Street".
Mr Kayrouz was called to give oral evidence. He said that he was born in 1948 and had been a builder for 51 years. The defendant company had been operated by him for the last 37 years. In that time it had built about 30 multi-storey buildings. There had never been an accident on one of his sites before Mr Ilioglou was injured. The Site at Kogarah was the only job which the defendant was working on at that time. Mr Kayrouz was on the Site every day from 7.00am to 4.00pm. He was in charge of safety and quality of work. If there was any unsafe practice he would say something and do something about it.
The defendant company had four to five workers plus the family. There were many nationalities working on the Site, but everyone spoke in English. Mr Kayrouz and Mr Ayoub conversed in English. Mr Kayrouz had known Mr Ayoub before this job, through a friend.
Mr Kayrouz said that he told Mr Ayoub and Mr Derbas that they had to use Princes Lane as the loading area. He told them not to work in Gray Street because there were overhead power lines. He had discussions with Mr Derbas about safety and a SWMS. Mr Kayrouz said that he did not know Mr Derbas was a supervisor but he thought he was just a worker. From time to time a crane was used to lift pipes from the basement to higher levels.
Mr Kayrouz said that there was no rubbish in Princes Lane or in the driveway on the day of the incident. Princes Lane was fully open.
Mr Kayrouz said he talked to Mr Ayoub concerning Spectra finishing off work on the upper levels about two weeks before the incident. He said that Mr Ayoub did not tell him what day the pipes would be delivered. The plumbers had their own garage space where materials could be stored. Mr Kayrouz was aware of the plumbers moving material up the fire stairs. He said that if he saw materials moved on Gray Street, he would have stopped this.
In cross-examination Mr Kayrouz agreed that by November 2016 the building was close to completion. There were about 12-16 contractors (including electricians, plumbers, painters and landscapers) on the Site, three of whom were plumbers.
Mr Kayrouz said that he did not do a risk assessment for any contractor's work, but that Ms Kayrouz did them. She did the paperwork.
On the day of the incident Mr Kayrouz had seen some plumbers on the ground floor installing vanity units.
It was put to Mr Kayrouz in cross-examination that he had a conversation with Mr Ayoub, on the day before the incident, concerning a delivery of copper pipes to be made on 21 November 2016. At this point counsel for the defendant said that the incident occurred on Monday, 21 November 2016, so the day before was a Sunday. Mr Kayrouz said that no construction was permitted on a Sunday, as it was not allowed by Council.
Mr Kayrouz conceded that he had been pressing the plumber for about three months to finish the copper piping work, as Spectra was late in finishing. He said that if a crane was not required for a delivery, he would not be aware of a delivery being made. He said that Mr Ayoub never told him about this delivery of copper pipes. Drivers making deliveries had to report to the site office. Mr Kayrouz did not hear a delivery truck on 21 November 2016 and he did not see a delivery being made.
In cross-examination it was pointed out to Mr Kayrouz that Mr Zarkos had said that a few weeks prior to the incident he had been involved in passing copper pipes up the Gray Street side of the building. Mr Kayrouz said this "did not happen". Mr Kayrouz had never investigated whether such method had been used before the day of the incident.
Mr Kayrouz is accepted as a credible witness.
Mr Wang was not required for cross-examination. It is noted that he says nothing about the inductions or the safety discussions being documented or signed off.
The fact is that the defendant did develop a safe work procedure by providing a location for the transport of material to Princes Lane and an access route into the building, being the driveway from Princes Lane to the basement of the building. The defendant also arranged a crane from time to time to enable deliveries to be made to the upper floors of the building. The crane could not remain permanently in Princes Lane, as permission had to be obtained from the Council and the lane had to be blocked off. It was entirely reasonable for the defendant to book in the crane from time to time, particularly since it told each contractor that a crane would be available on a certain date and that deliveries could be lifted up by the crane on that date. However, while the safe working procedure in these respects was developed and implemented, it does not appear to have been enforced. The evidence shows that this was the second occasion when the plumbers passed copper pipes up the Gray Street side of the building. Clearly the people involved in those exercises had not had the loading and unloading safe work procedure enforced. I find that par 10(b)(i) and 10(b)(iii) have been made out by the prosecutor.
I decline to find that par 10(b)(ii) of the Summons was a necessary and reasonably practicable precaution. It was a long, slow process to deal with Ausgrid and de-energise the power lines. It could not be done on short notice. It was not reasonably practicable to deal with the risk by having the power lines de-energised each time someone wanted to do a delivery to the building. The method chosen by the defendant, of having all deliveries made to Princes Lane was a suitable reasonably practicable precaution, but the fault of the defendant lay in failing to enforce that safe work procedure.
Paragraph 10(d) of the Summons is in the following terms:
"(d) ensure that information, instruction and training was provided to workers, including Mr Ilioglou, so they knew of the risks associated with working in close proximity to energised overhead power lines, including the high voltage power lines at the construction site;"
The evidence of Mr Ilioglou establishes that he was given no information, instruction or training about the risks associated with working in close proximity to the overhead power lines. While as a matter of common sense he knew that the power lines were there and that they would be dangerous, the training should have extended to reinforcing those matters to a young relatively inexperienced worker.
I find that the prosecutor has made out par 10(d) of the Summons.
Paragraph 10(f) of the Summons is in the following terms:
"(f) prohibit workers from handling or carrying material, including 6-metre lengths of copper pipe, that could come into contact with the energised high voltage power lines at the construction site if the high voltage power lines were not de-energised;"
I find that this is a blanket prohibition which should have been implemented and enforced by the defendant. The evidence of Mr Ilioglou and Mr Zarkos establishes beyond doubt that there was no such prohibition conveyed to those workers.
I find that par 10(f) of the Summons has been made out by the prosecutor.
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 level of culpability of Kayrouz Constructions Pty Limited are based upon the following:
1. The risk of contact with the overhead power lines, in a general sense, had been foreseen by Kayrouz. Kayrouz had taken precautions against that risk, but once the scaffolding was taken down in September 2016, Ms Kayrouz did not turn her mind to the presence of a continuing risk.
2. Even though the scaffolding had been removed, there was a prospect that one of the trades on the Site might do work, or use machinery, which created the risk of contact with the power lines.
3. The potential consequences of contact with 11,000 volts of electricity, were death or serious injury.
4. The administrative steps pleaded in par 10 of the Summons could, and should have, been taken to minimise the risk.
5. There would have been no great burden in carrying out these measures.
6. Mr Ilioglou was fortunate not to have been killed or seriously disabled by the incident. He has made a good, but not a full, recovery. He is still able to pursue his trade.
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 actual task being performed by Spectra, at the direction of Mr Derbas, was foolhardy to say the least. The incident happened as the first copper pipe was passed up, leaving little time for Kayrouz to become aware of what was being attempted. That is all the more reason for measures to be taken early to prevent or prohibit such actions.
9. Kayrouz did have a safe system of handling deliveries, via Princes Lane and the use of a crane at arranged times. Its fault lay in not making sure that its system was followed without fail.
I find that the level of culpability of Kayrouz is in the low range.
The present case falls outside those principles. Kayrouz has put the prosecutor to proof on certain factual issues. While the prosecutor has proved most of the disputed facts, some which were crucial to the determination of objective seriousness have not been proved by the prosecutor, for reasons set out above. Further, the conduct of the matter by both sides resulted in a hearing which was relatively short and not protracted. Sentencing hearings in cases of this nature usually take between half a day and a full day. Because of the economical and focussed approach of both sides, this hearing was over in one and a half days.
It is appropriate to give a 25% discount for an early plea.
Kayrouz 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.
I find that Kayrouz was less culpable than Spectra. This was a matter of agreement between the prosecutor and the defendant in final submissions.