Safework NSW v Master Electrical Services Pty Ltd; Safework NSW v Tannous

Mr Tannous

1. Mr Tannous oversaw the Building on behalf of Master Electrical and reported to Mr Ayoub. He was present on the Site on a daily basis. He was not on-site at the time the incident occurred but had been there previously that day. Mr Tannous supervised the construction work undertaken at the Site and engaged subcontractors to carry out this work.
2. Mr Tannous' position was formally identified as "Works Manager" in Master Electrical's OHSE Management Plan. In that document his role was defined as follows: "Nick Tannous is responsible for OHSE at the workplace and duties include: ● implementing the OHSE Management Plan; ● using the Hierarchy of Controls in all design, fabrication and construct activities to minimise OHSE risks; ● communicating with the principal contractor to reduce risks; ● being a part of the planning and design stages of trade activities; ● deciding when training on OHSE is required; ● leading by example and promoting sound OHSE practices at every opportunity; ● ensuring safe equipment and plant is provided and maintained; ● reviewing OHSE reports and inspections, and following up on recommendations; ● coordinating incident investigations and reporting to the controller of the workplace and relevant authorities, as required; ● coordinating OHSE meetings and programs; ● monitoring compliance with OHSE Management Plan, including Safe Work Method Statement; and ● assisting injured employees to return to their pre-injury duties as soon as practicable after a work-related injury."
3. Mr Tannous was trained by Mr Ayoub. The training extended to a Safe Work Method Statement (SWMS) on working at heights. Mr Tannous received general instructions from Mr Ayoub to control the risk of falls from height by erecting fall protection devices. Mr Tannous had relevant experience having undertaken similar projects in the past. Mr Ayoub relied on Mr Tannous to ensure safety at the Site.

The Unprotected Leading Edge

1. Work commenced on the construction of the Building in 2016. The Ferguson Avenue frontage of the Building comprised twelve units, four on each level. As at 22 June 2017, construction had progressed to the extent of three levels, including the ground, first and second levels of the Building. The design of the Building included exterior balconies with a concrete slab located on the ground, first and second levels of the Building fronting Ferguson Avenue.
2. On 8 June 2017, scaffolding was erected around the entire perimeter of the Building other than the right-hand half of the Building which fronted Ferguson Avenue. The scaffolding company advised Mr Tannous that the scaffolding could not be completed to this section of the Building because it ran out of stock of scaffold. In the weeks leading up the incident Mr Tannous and Mr Saliba called the scaffolding company to ask when they would attend to complete the scaffolding. The scaffolding was scheduled to be installed on 23 June 2017.
3. From 8 June 2017, and up until around midday on 21 June 2017, the risk of a fall from the balconies in this area was minimised because the exposed edges of the balconies were protected by formwork frames and barriers.
4. On 21 June 2017 at around midday the formwork that had previously been in place in respect of Unit 2 on Level 1 and its balcony was removed. This included the removal of the frames and temporary barriers that had minimised the risk of a fall from the edge of the balcony.
5. Prior to the formwork being removed from the balcony, Mr Ayoub asked Mr Tannous in a telephone conversation to ensure that no persons accessed the balconies of the units from which the formwork was to be removed.
6. Mr Tannous was aware that there was going to be a delay in the installation of scaffolding along the right-hand half of the Building fronting Ferguson Avenue, including the balcony. Scaffolding was not erected along the front of level 1 of the right-hand half of the Building fronting Ferguson Avenue after the formwork had been removed.
7. On or about 21 June 2017, Mr Tannous told Mr Saliba to tell workers not to access or work in the units until the scaffolding had been erected.
8. As at 22 June 2017, the balconies on level 1 of right-hand half of the Building fronting Ferguson Avenue, in particular the balcony on Unit 2, were open and had no edge protection in place in the form of hand rails or similar physical barrier. The absence of edge protection to the balcony was contrary to the SWMS that had been developed for the Site.

The Incident

1. Mr Sowmi attended the Site on 22 June 2017. He had a conversation with Mr Saliba about the subcontracted work.
2. On the morning of the incident Mr Saliba gave instructions to some workers, including Mr Ribeiro, a labourer engaged by Master Electrical, not to go out on the balcony. Mr Saliba did not remember if Mr Sowmi was present when he gave those instructions.
3. Mr Sowmi was joined at the Site by Mr Patrick Petersons, who was an 18 year old apprentice with three weeks experience working on construction sites. Mr Nikolas Xenakis and Mr Kevin Hannouche, who worked for Auswide Plumbing, arrived at about 7.00 am on 22 June 2017. This was their first day on the Site.
4. Mr Petersons, Mr Xenakis and Mr Hannouche stated that they were not provided with any instruction or direction by Mr Saliba or Mr Tannous that they were not permitted to work in the units or on the balconies on the right-hand half of the Building fronting Ferguson Avenue, which did not have scaffolding erected or any edge protection on the balconies.
5. Mr Xenakis and Mr Hannouche stated that they were not provided with information about the lack of barriers or scaffolding to prevent a risk of a fall from the balcony.
6. Mr Sowmi, Mr Petersons, Mr Xenakis and Mr Hannouche proceeded to the first level of the Building and commenced working in the unit immediately adjacent to Unit 2. This unit had scaffolding across the front of its balcony.
7. Mr Sowmi, Mr Petersons, Mr Xenakis and Mr Hannouche then proceeded to Unit 2 to continue plumbing works.
8. Mr Sowmi was using a hand-held Bosch hammer drill. He commenced "chasing in" for a hot water system and associated pipe work on the brick wall on the right-hand side of the balcony, when facing Ferguson Avenue. He was seen working 1.5 metres from the edge of the balcony.
9. Mr Hannouche said he noticed the area where Mr Sowmi was working had no scaffolding or barrier and he assumed that Mr Sowmi was also aware there was no scaffolding or barrier on the leading edge of the balcony.
10. While performing the "chasing in" work Mr Sowmi fell over the edge of the balcony and landed on concrete located approximately four metres below. Mr Sowmi does not have a memory of the incident. His last memory is of being at the Site a few days before the incident.
11. Mr Xenakis was inside Unit 2 when the incident occurred. He heard a loud bang. He saw that Mr Sowmi was on the ground below. Mr Hannouche was working in the bathroom and heard a scream. He observed that Mr Sowmi was on the ground. Mr Petersons had his back to Mr Sowmi and did not see what happened.
12. Mr Sowmi was attended to by Mr Saliba and other workers. NSW Ambulance and police were notified and attended a short time later.

Injuries

1. As a result of the incident, Mr Sowmi suffered spinal injuries, multiple skull and facial fractures, upper limb injuries and an injury to his dominant left hand. He was admitted for treatment at St George Hospital on 22 June 2017 and was discharged on 3 August 2017. On being discharged he was referred to the Brain Injury Unit at Liverpool Hospital for ongoing care.
2. Mr Sowmi says that as a result of the injuries he sustained in the incident, he will never work in his chosen profession again.

Edge Protection

1. As at 22 June 2017 there was no edge protection such as scaffolding or perimeter guard railing in place to minimise the risk of workers falling from the unprotected open edge of the balcony. There was no effective barrier in place which prevented workers from accessing and performing work on the balcony.
2. Mr Tannous had not directed that temporary edge protection, in particular a perimeter guard rail, should be installed around the unprotected leading edge of the balcony.

Safe Work Method Statement

1. Master Electrical had created a SWMS dated 5 September 2016 relating to the activity "Working at Heights" at the Site. Mr Tannous and Mr Saliba were identified as the contact persons on the SWMS. Mr Tannous had responsibility for ensuring compliance with the SWMS and had been trained in the document by Mr Ayoub. The SWMS applied to "all tradesmen, construction workers and contractors".
2. The SWMS identified the general risk of "falling from height" at the Site. It also identified generic controls in respect to the risk of falling from height, including the use of "guardrails of necessary strength", "scaffolds" and "stable and securely fenced platforms".
3. Such controls had not been implemented on the right-hand half of the Building fronting Ferguson Avenue, including the balcony.

Induction, Training and Information

1. Master Electrical had created an OHSE Management Plan for the Site. A section in the OHSE Management Pan headed "OHSE 008 - Objectives and targets" stated that Master Electrical would provide employees "regular and up-to-date information on OHSE for the duration of the contracted/agreed works".
2. The section also stated: "All employees involved with the contracted/agreed work have undertaken as a minimum the three levels of induction training, i.e. general industry (safety awareness) training, site specific training and work activity training as noted in the Safe Work Method Statements(s) specific to the contracted/agreed works."
3. A section in the OHSE Management Plan headed "OHSE 004 - Hazard identification, risk assessment and control" stated: "MASTER ELECTRICAL SERVICES Pty Ltd will not commence construction work at a place of work unless: ● … ● … ● MASTER ELECTRICAL SERVICES Pty Ltd has provided induction training to all employees ● MASTER ELECTRICAL SERVICES Pty Ltd maintains and updates the SWMS, and provides the updated SWMS to the subcontractors."
4. Workers working at the site, including Mr Sowmi, Mr Hannouche, Mr Xenakis and Mr Petersons, did not receive any information, instruction or training from Master Electrical about working at heights.
5. On the date of the incident Mr Saliba recalled that he gave instructions to some workers that they were not to go out on the balcony. Mr Saliba did not recall if Mr Sowmi was present when he gave those instructions. Mr Hannouche, Mr Xenakis and Mr Petersons each stated that they did not receive the instructions not to go out on the balcony from Mr Saliba. Mr Ayoub said that Master Electrical relied on Mr Tannous to ensure that safety at the Site was being addressed.

Foreseeability of Risk

1. Clauses 78 and 79 of the Work Health and Safety Regulation 2017 (the Regulation) provide guidance in relation to the management of the risk of falls. Clause 78 relevantly states: "78 Management of risk of fall (1) A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person. Note : WHS Act--section 19 (see clause 9). (2) Subclause (1) includes the risk of a fall: (a) in or on an elevated workplace from which a person could fall, or (b) in the vicinity of an opening through which a person could fall, or (c) in the vicinity of an edge over which a person could fall, or (d) on a surface through which a person could fall, or (e) in any other place from which a person could fall."
2. Clause 79 relevantly states: "79 Specific requirements to minimise risk of fall (1) This clause applies if it is not reasonably practicable for the person conducting a business or undertaking at a workplace to eliminate the risk of a fall to which clause 78 applies. (2) The person must minimise the risk of a fall by providing adequate protection against the risk in accordance with this clause. Maximum penalty: (a) in the case of an individual--$6,000, or (b) in the case of a body corporate--$30,000. (3) The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by: (a) providing a fall prevention device if it is reasonably practicable to do so, or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or (c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable. Examples: 1 Providing temporary work platforms. 2 Providing training in relation to the risks involved in working at the workplace. 3 Providing safe work procedures, safe sequencing of work, safe use of ladders, permit systems and appropriate signs. Note : A combination of the controls set out in this subclause may be used to minimise risks, so far as is practicable, if a single control is not sufficient for the purpose. (4) …. (5) In this clause, "fall prevention device" includes: (a) a secure fence, and (b) edge protection, and (c) working platforms, and (d) covers."
3. The SafeWork NSW publication, Managing the Risk of Falls at Workplaces Code of Practice (SafeWork CoP), dated April 2016, applies to all workplaces where there is a risk of a fall by a person from one level to another that is reasonably likely to cause injury. It was readily accessible to Master Electrical at the time of the incident.
4. Section 1 at page 3 of the SafeWork CoP states: "Falls are a major cause of death and serious injury in Australian workplaces. Fall hazards are found in many workplaces where work is carried out at height, for example stacking shelves, working on a roof, unloading a large truck or accessing silos. Falls can also occur at ground level into holes, for example trenches or service pits"
5. Section 1.2 at p 3 of the SafeWork CoP states: "Risk of a fall means a circumstance that exposes a worker while at work, or other person while at or in the vicinity of a workplace, to a risk of a fall that is reasonably likely to cause injury to the worker or other person. This includes circumstances in which the worker or other person is: … ● in the vicinity of an edge over which a person could fall."
6. Section 2.1 at page 6 of the SafeWork CoP states: "You must identify all locations and tasks that could cause injury due to a fall. This includes access to the areas where work is to be carried out. Tasks that need particular attention are those carried out: … ● near an unprotected open edge (for example, near incomplete stairwells)."

Hierarchy of Control Measures

1. The SafeWork CoP provides specific guidance for persons conducting a business or undertaking (PCBU) for managing risk under cll 34-38 of the Regulation in relation to falls from heights.
2. Clauses 34-38 of the Regulation require that PCBUs must: 1. identify reasonably foreseeable hazards that could give rise to risks of health and safety; 2. eliminate the risk to health and safety so far as is reasonably practicable, and if not reasonably practicable to do so, minimise the risk so far as is reasonably practicable by implementing control measures in accordance with the hierarchy of risk control under cl 36 of the Regulation; 3. maintain the implemented control measure so that it remains effective; and 4. review and, if necessary, revise all risk control measures.
3. Section 1.3 at p 4 of the SafeWork CoP and the Regulation require duty holders to work through the hierarchy of risk controls to choose the most effective measures to eliminate or minimise the risk.
4. Section 2.3 at p 8 of the SafeWork CoP provides guidance on various control measures in the hierarchy which are available to be implemented in order to provide adequate protection against the risk of falls: "1. Can the need to work at height be avoided to eliminate the risk of a fall? ● Carry out any work that involves the risk of a fall on the ground 2. Can the fall be prevented by working on solid construction? ● A building or structure that is used as an existing place of work and includes safe access and egress from which there is no risk of a fall from one level to another, for example properly constructed stairs with fixed handrails, flat roofs with a parapet or permanently installed guard rails around the edges. It is usually not necessary to implement additional control measures to manage the risk of falls for workplaces in buildings that already comply with the requirements of the National Construction Code of Australia, for example in relation to stairs, mezzanines and balconies. 3. Can the risk of a fall be minimised by providing and maintaining a safe system of work, including: ● providing a fall prevention device (for example, installing guard rails) if it is reasonably practicable to do so, or ● providing a work positioning system (for example, an industrial rope access system) if it is not reasonably practicable to provide a fall prevention device, or ● providing a fall-arrest system, so far as is reasonably practicable, if it is not reasonably practicable to provide a fall prevention device or a work positioning system."

Edge Protection

1. Section 3.2 at p 11 of the SafeWork CoP states: "Barriers Barriers (or edge protection) to prevent a person falling over edges and into holes should be provided on relevant parts of a solid construction. These include: ● the perimeters of buildings or other structures … ● the open edge of a stair, landing, platform or shaft opening. … The barrier should be designed and constructed to withstand the force of someone falling against it. Edge protection should consist of guard rails, solid balustrades or other structural components, for example wire mesh supported by posts and provided with reinforced top edge. The top of the guard rail or component should be between 900 mm and 1100 mm above the working surface. If a guard rail system is used, it should also have mid-rails and toe boards or wire mesh infill panels."

Training & Information

1. Section 2.3 at pps 8-9 of the SafeWork CoP states: "To allow the chosen control measures to operate effectively, you should: … ● provide information, training and instruction to workers, including procedures for emergency and rescue. You should also cover: - the type of control measures used to prevent falls."

Reasonably practicable measures that could have been taken

1. Master Electrical could have adopted the following measures to eliminate or minimise the risk of Mr Sowmi falling from height: 1. installing temporary edge protection, such as scaffolding or perimeter guard railing, around the unprotected leading edge of the balcony; 2. preventing workers from accessing and performing work on the balcony unless and until edge protection, such as scaffolding or perimeter guard railing, was installed around the unprotected leading edge of the balcony by providing adequate information to Mr Sowmi as to: 1. the absence of temporary edge protection, such as scaffolding and/or perimeter guard railing, around the unprotected leading edge of the balcony; and 2. that he and other workers should not access and perform work on the balcony unless and until edge protection, such as scaffolding and/or perimeter guard railing, was installed around the unprotected leading edge of the balcony; 1. ensuring that subcontractors on site, in particular Mr Sowmi/Blockbusters, had safe systems of work for working at height.

Systems of Work Following the Incident

1. On 22 June 2017 Inspector Bell from SafeWork NSW issued a Prohibition Notice to Sannout directing that it immediately cease all construction work where a worker could fall more than two metres from one level to another, as well as requiring that it develop and implement a safe system for working at heights including scaffold, guard rails and other fall prevention methods. Master Electrical, as the principal contractor, was responsible for ensuring these measures were taken.
2. Following the incident on 22 June 2017 Master Electrical implemented the following systems of work: 1. fall protection in the form of scaffolding and wooden barriers was installed on the exposed parts of the Building; 2. frequent and documented site inspections were conducted; 3. frequent safety discussions were held with subcontractors; 4. increased safety signage was placed at the Site; and 5. Safe Work Method Statements on high risk construction work were obtained from subcontractors before construction work was allowed to commence.
3. The defendants cooperated with SafeWork NSW's investigation.

Evidence for the Defendants

1. The defendants tendered the affidavit of Mr John Ayoub sworn on 5 June 2020 (DX1) and of Mr Nicolas Tannous affirmed on 8 June 2020 (DX 2).

Affidavit of Mr John Eli Ayoub

1. In his affidavit Mr Ayoub states that he has worked in the construction industry for approximately 20 years, starting an apprenticeship at 15 years of age. He is a licenced electrician and also holds a builder's licence. Additionally, he has a Certificate III qualification in Electrical/Mechanical fitting and has completed construction industry induction training, first aid training and electrical hazard rescue and release training.
2. In his current role as a Director of Master Electrical, Mr Ayoub's responsibilities include overseeing and managing both the electrical and building work of the business and working with on-site project teams.

Apology

1. Mr Ayoub apologised to Mr Sowmi on behalf of Master Electrical and acknowledges that the very serious injuries suffered by Mr Sowmi were due to the failures of Master Electrical.

The Project

1. Prior to the Wiley Park project Master Electrical had only been involved in one other large-scale construction project. The other seven projects undertaken were smaller projects relating to industrial fit-outs and home construction.
2. In 2016 Mr Ayoub and Mr Tannous purchased the Wiley Park site for development. Mr Tannous' company, Sannout, financed the project. Mr Tannous provided the daily project management for the development. Profits from the development would be divided equally following the completion and sale of the units. Mr Saliba was appointed Site Foreman. He held a Certificate IV in Building and a Certificate III in Carpentry and had worked in the construction industry for 13 years. Mr Tannous paid the invoices that Mr Saliba sent to Master Electrical.
3. Mr Tannous engaged BDPM Consultants to develop and provide the WHS Management Plan. Mr Tannous, Mr Saliba and Mr Ayoub also had a meeting to discuss how site safety was to be managed and how the plan was to be implemented. At this meeting, Mr Ayoub told Mr Tannous and Mr Saliba that he expected them to implement the systems as per the plan provided by the BDPM Consultants. Master Electrical also provided Mr Tannous with a copy of its SWMS and discussed the importance of managing the risk of falls.
4. During the project, Mr Ayoub visited the site approximately two times per week and would check that safeguards (including hand rails, fixed power boards, tested and tagged leads that were not elevated, capped reo bars, general cleanliness and site security) were present. Mr Ayoub also discussed safety issues that came to his attention during his inspections and followed them up with Mr Tannous.
5. Mr Tannous and Mr Saliba did not use the toolbox talk record that was part of Master Electrical's system. Instead, the toolbox talks were documented in Mr Saliba's site diary.
6. Mr Ayoub was aware that Mr Tannous and Mr Saliba undertook their own regular site inspections before the incident and that the issue of incomplete scaffolding was identified in a site inspection on 14 June 2017. Mr Saliba made a note that he needed to call the scaffolder. Part of the perimeter scaffolding at the Site had not been completed due to an unexpected delay by the scaffolder. Mr Ayoub explains that he expected Mr Tannous and Mr Saliba to manage the risk of a fall from the balcony in the period between the formwork removal and scaffolding installation, by putting into place temporary measures such as barricading access to the apartments where the hazard was present.

Systems of work following the incident

1. Mr Ayoub detailed the following actions taken by Master Electrical to avoid another safety incident occurring: 1. Mr Ayoub increased his on-site attendance to six days per week and attended the Wiley Park site on a daily basis to oversee works as well as ensure implementation of WHS plans and systems. 2. Mr Ayoub directed Mr Tannous and Mr Saliba to use the documentation provided in the management plan, including the toolbox talk forms, to ensure proper documentation of safety discussions. 3. The frequency of site safety inspections was increased and hazards identified were marked with danger tape or barricaded. 4. The frequency of safety discussions with contractors was increased. In particular, toolbox talks were undertaken on a weekly basis and records of these talks were displayed on the noticeboard accessible by all workers in the site office.
2. No further injuries occurred on the project after the incident. Since the completion of the Wiley Park project in or around April 2018, Master Electrical has not undertaken any new construction site work as a principal contractor. Master Electrical now hires another builder to be the principal contractor for its construction projects.

Charitable works and community contribution

1. Mr Ayoub, along with other electrical contractors, painted the Chris O'Brien Lifehouse hospital wards in late 2019. Master Electrical supplied labour for this project and received a certificate of acknowledgement from the hospital.

Apology

1. In his affidavit, Mr Tannous said he is very sorry for the contravention of WHS law on 22 June 2017 that led to Mr Sowmi's exposure to the risk of death or serious injury. Mr Tannous accepts that as the Project Manager he was responsible for ensuring that adequate and appropriate controls were in place to ensure Mr Sowmi's safety. He acknowledges the very serious injury suffered by Mr Sowmi and the significant impact the injury has had on his life. Mr Tannous has known Mr Sowmi since 1987 and expressed deep remorse for the incident and for the impact it has had on Mr Sowmi and his family.

The Project

1. Mr Tannous and his wife, through their company Sannout, entered into an agreement with Master Electrical to develop the Site. Sannout financed the project and engaged Master Electrical to be the principal contractor. Mr Tannous was responsible for all site expenditure and he purchased safety equipment as required.
2. Mr Saliba was working for his own company, Company Capital Corp Construction Pty Ltd, when he was appointed to be Site Foreman/Work Supervisor at the Site. Mr Saliba was at the time a licenced carpenter with a Certificate IV in Building and Construction and seven years of prior experience as a site foreman prior to being appointed by Mr Tannous. Mr Tannous states that before the project commenced, he arranged and paid for Mr Saliba to obtain high-risk work licences. Mr Saliba was responsible for ensuring all work activities were carried out in a safe manner. Mr Sowmi was given the contract for all plumbing works on the Site.
3. Mr Tannous' role involved managing approvals, finances, expenditure and contracts, overseeing the progress of the development, having a high-level oversight of safety matters and providing regular updates to Mr Ayoub. At par 18 of his affidavit, Mr Tannous states that he was not directly responsible for putting safety measures into practice as he had no formal trade qualifications or skills that would enable him to do so. At par 23 of his affidavit, he explains that he decided to engage BDPM Consultants Pty Ltd to provide project management services, including to develop a WHS Management Plan.
4. Mr Tannous described the meeting that occurred between Mr Ayoub, Mr Saliba and himself to discuss the safety documentation BDPM provided and how it would be implemented at the Site. Mr Tannous says that it was agreed that Mr Saliba would be primarily responsible for implementing the WHS Management Plan, involving carrying out inductions and toolbox talks, inspections, and implementing safety measures effectively. He explains that he was responsible for ensuring that Mr Saliba was fulfilling the necessary steps, arranging necessary work permits and for tiger tails to be installed on the power lines in proximity with the building project, establishing a site office and amenities, assisting Mr Saliba with staff safety inductions, obtaining and reviewing copies of subcontractors' SWMSs, ensuring workers signed off on their SWMSs, assisting Mr Saliba and Mr Ayoub with regular site inspections and hazard checks and regularly discussing safety with Mr Ayoub. Mr Tannous said that he observed Mr Saliba discussing safety issues at toolbox talks with workers when key developments were happening on site.
5. By 8 June 2017, the perimeter scaffold had been partially erected by Mr Steve Jetani from Certified Scaffold Systems, which was responsible for providing a perimeter scaffold for the Site. Mr Tannous states that Mr Jetani had told him he had run out of stock to complete the last area. Initially, Mr Jetani promised he would come back to finalise the scaffolding on 14 June 2017, and then on 19 or 20 June 2017. However he did not attend on any of these days. On 20 June 2017 Mr Jetani promised Mr Tannous that he would attend the Site by 23 June 2017 at the latest to complete the scaffolding. Unfortunately, the incident occurred the day before.
6. Mr Tannous states at pars 37 to 39 of his affidavit that he had spoken to a number of workers directly about the hazard on 21 June 2017, updated them on the delay in the scaffolding and spoke to Mr Saliba about the hazard posed by the unprotected edges on the balconies. He says that on 21 June both he and Mr Saliba verbally directed workers not to access the units on several occasions. At par 40 of his affidavit, Mr Tannous explains that on the morning of 22 June 2017, when Mr Sowmi told him he would be working on the units, he assumed he would be working only on the areas protected by the already erected scaffolding.
7. Mr Tannous acknowledges that the verbal direction was an inadequate measure to protect Mr Sowmi from the risk of a fall and that other measures, such as barricading the units, should have been taken.

Steps taken following the incident

1. Mr Tannous says the following steps were taken after the incident: 1. Mr Ayoub, Mr Saliba and Mr Tannous worked together to improve safety by increasing the amount of safety signage, increasing the number of site safety inspections, toolbox talks and safety discussions with contractors, documenting safety matters in accordance with the management plan, increasing the frequency of safety discussions, and barricading or covering all on-site safety hazards. 2. Mr Tannous visited Mr Sowmi in hospital on an almost daily basis. During Mr Sowmi's time in rehabilitation, Mr Tannous and his family made regular enquiries as to Mr Sowmi's well-being, offered to assist if needed and also provided groceries, food and gifts for Mr Sowmi's family upon Mr Sowmi's return home. Mr Tannous has since regularly provided support to Mr Sowmi's family. 3. Mr Tannous completed a short course in Safety in the Workplace in September 2019 and is currently completing a Certificate IV in Workplace Safety.

Charitable works and community contribution

1. Mr Tannous has been involved with various charitable works and community organisations for several years both in Australia and abroad, including: 1. serving as a volunteer soccer coach at a local soccer club; 2. serving as an active member on the management and fundraising committee at an Antiochian Orthodox parish in Sydney; 3. volunteering, fundraising and donating $30,000 of his family's own money towards the development of community projects of the Antiochian Orthodox Diocese; 4. actively working at St Raphael's Mission, a Sydney-based charity that prepares food for homeless persons in Martin Place and Liverpool, as well as providing food hampers and gifts to children and teachers at special education schools; 5. fundraising for a youth drug and alcohol rehabilitation centre in Lebanon; 6. raising funds for cancer research connected to the Seven Bridges Walk; 7. actively being involved with a number of organisations (Lifestart, the Rainbow Club, Participate Australia, the Rotary Club, the Recreational Sports and Aquatic Club, and the Special Olympics) which support children and young people with a disability; 8. supporting and assisting elderly neighbours with transportation, shopping trips, health visits and domestic assistance.

Character References

1. Character references were supplied by Mr Joseph Ghosn, Mr Simon Melhem, Mr Michael Mahfouz, Mr Mtanos Karam, Mr Magrouf Amyouni, Mr Sarkis Sakhoul, Mr Leo Sorbello and Rev Fr Dr John El Karaan.
2. Mr Ghosn has known Mr Tannous for over seven years as both a colleague and a friend. He served as a consultant Civil and Structural Engineer for the Wiley Park project. He states that Mr Tannous treated the tradesmen working for him as family and was deeply affected and saddened by the undue pain and suffering that was experienced by Mr Sowmi. Mr Ghosn also states that on numerous occasions he had conversations regarding safety with Mr Tannous. It was clear to him that Mr Tannous paid attention to the health and safety of his workers and that he knows that Mr Tannous was not deliberately negligent. Mr Ghosn also describes Mr Tannous as an individual who has a passion for helping those less fortunate than himself. He goes on to say that he can state with a clear conscience that Mr Tannous is by far the most trustworthy, helpful, passionate and caring person that he knows.
3. Mr Melhelm, Mr Mahfouz, Mr Karam, Mr Amyouni and Mr Sarkhoul are contractors who have had experience working with Mr Tannous on the Wiley Park project and on previous projects. They describe Mr Tannous as a professional, skilled, knowledgeable, hard-working, caring, considerate, respectful and diligent man who took the safety of his workers and contractors seriously. They describe the incident as out of character for Mr Tannous.
4. Mr Sorbello met Mr Tannous five years ago through the Soccer Club which Mr Tannous manages. He describes Mr Tannous as a close friend with commendable values, who has genuine care for the soccer team players and as someone who always has time for Mr Sorbello and his family. Mr Sorbello also states that Mr Tannous is a proud family man, is highly regarded by his Church community, and is a person with a high work ethic who has reiterated to him that the duty of care for his employees is paramount.
5. Rev Fr Dr John El Karaan is the Priest of St Nicholas Antiochian Orthodox Church who has known Mr Tannous for more than 10 years. He describes Mr Tannous as a sincere, honest, trustworthy person. He has been a faithful member of his parish, is highly respected among the community and is a role model to others who would like to contribute to the common good of society. He explains that Mr Tannous has been supporting the charitable works of the Church financially and voluntarily for many years including contributing to youth and scout activities, carnivals, feeding the homeless and church iconography. In Fr Karaan's opinion, the failure to take reasonable care for a worker resulting in the injury of that worker is conduct which is out of character for Mr Tannous.

Consideration

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

Objective Seriousness of the Offence

1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
3. 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."
4. 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].
5. 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.
6. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
7. 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. His Honour Justice Basten at par 34, under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors."
8. Further at par 42 his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [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."
9. At par 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."
10. My findings about the defendants' level of culpability are based upon the following: 1. The risk was foreseeable and was actually known to both defendants. 2. The likelihood of the risk occurring was significant. Unlike many cases of a fall from height, this matter involved an experienced worker falling over an unprotected edge. What it demonstrates is that all workers have to be protected from falls, as construction work often involves using heavy equipment and requires close attention to the task at hand, rather than to the surrounds. 3. The potential consequences of the risk included very serious injury, as occurred in this case. 4. Simple steps were available to minimise the risk, including temporary edge protection or preventing access to the balcony by a barricade. Giving a verbal instruction was completely inadequate, and was inconsistent with the Master Electrical SWMS. 5. The burden or inconvenience of these steps was not great. 6. The harm caused was very serious. The injuries to Mr Sowmi have greatly and permanently diminished his quality of life. 7. The maximum penalty for the offence is a fine of $1,500,000 in the case of Master Electrical and $150,000 in the case of Mr Tannous, both of which reflect the legislature's view of the seriousness of the offences. 8. I accept the submission for the defendants that this is not a case where there were no systems in place. There was a written safety system, but it was not followed properly. There had been edge protection until a few days before the fall. There was a verbal instruction, but as has been said in previous decisions, that is a completely inadequate precaution.
11. I find that the level of culpability of Master Electrical Pty Ltd is in the mid range.
12. I find that the level of culpability of Mr Tannous is in the mid range.

Deterrence

1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].
2. Evidence tendered in this case (PX 4) shows that falls from heights resulting in serious injury or death are unfortunately a common occurrence both at the state and national levels. In 2015, 28% of all workplace fatalities in Australia were caused by falls from heights. In 2017/2018, 499 workplace fall incidents occurred in NSW, up from 439 in the 2016/2017. In 2018/2019, 476 workplace fall incidents occurred in New South Wales. In the light of these terrible statistics, general deterrence is a vital factor in this case.
3. The penalty must also reflect the need for specific deterrence. Both defendants are still involved in the construction industry.

Aggravating Factors

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

Mitigating Factors

1. Neither defendant has any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
2. Both defendants are otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The extent of community involvement of Mr Tannous is commendable and above the norm. I was very impressed with the quality of the evidence on this topic and I will moderate the penalty which I would have otherwise imposed upon him.
3. Both defendants are unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
4. Both defendants have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. They have taken positive steps to guard against the risk of an incident such as this ever happening again. Master Electrical has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.
5. Both defendants have shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. They have provided evidence that they have accepted responsibility for their actions and have acknowledged that the injuries to Mr Sowmi were caused by their actions.
6. Both defendants entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give both defendants a 25% discount for an early plea.
7. Both defendants gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. They co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Parity

1. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v R [2011] HCA 49; (2011) 244 CLR 462 at [30].
2. 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."
3. 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.
4. It is appropriate for the court to consider the respective contributions of each defendant. 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].
5. I find that each defendant was equally culpable. Master Electrical was relying on Mr Tannous and Mr Saliba to take adequate precautions. But Mr Ayoub and his company should not, as principal contractor, have taken a "hands-off" approach to safety. The level of diligence shown by Master Electrical after the incident was the level which should have been observed before Mr Sowmi fell. Mr Tannous delegated the giving of a verbal warning to Mr Saliba, but such a warning was not the appropriate control in the first place.

Capacity to Pay a Fine

1. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
2. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 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."
3. There was no evidence about a reduced capacity to pay, so this issue does not arise.

Victim Impact Statement

1. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with by the District Court where the offence results in the death of, or actual physical bodily harm to, any person - s 27(2)(a).
2. A Victim Impact Statement may be tendered to the court only by the prosecutor - s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division - s 30B.
3. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate - s 30E(1).
4. A written Victim Impact Statement, signed by Mr Sowmi and dated 25 March 2020 (PX 3) was tendered. Due to the traumatic brain injury and multiple fractures caused by the incident, Mr Sowmi was in a coma for one month. He spent four months in hospital. He had to undergo multiple operations to attempt to correct his hand, knee and neck fractures, as well as extensive brain injury therapy and rehabilitation.
5. Mr Sowmi has lost all use of his left hand, which was his dominant hand before the incident, and has also lost most of the strength in his right hand. He continues to experience severe neck pain, headaches and vertigo and has to take daily medication. His frontal lobe fractures have resulted in his walking being affected and the orbital fractures have caused poor vision in his left eye.
6. Mr Sowmi's personal relationships have been significantly impacted as his head injuries have caused him to be chronically depressed, irritated and angry. He also stated that his neurologist told him that he may never be able to return to work due to his physical and cognitive injuries.

Costs

1. The parties have agreed to an order that each defendant is to pay the prosecutor $25,000 in costs.

Penalty

1. My orders are: Penalty in relation to Master Electrical Services Pty Ltd: 1. The offender Master Electrical Services Pty Ltd is convicted. 2. I take into account the Victim Impact Statement of Mr Sowmi. 3. The appropriate fine is $200,000 but that will be reduced by 25% to reflect the plea of guilty. 4. Order the offender Master Electrical Services Pty Ltd to pay a fine of $150,000. 5. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 6. Order the offender Master Electrical Services Pty Ltd to pay the prosecutor's costs agreed in the amount of $25,000. Penalty in relation to Nicolas Tannous: 1. The offender Nicolas Tannous is convicted. 2. I take into account the Victim Impact Statement of Mr Sowmi. 3. The appropriate fine is $20,000 but that will be reduced by 25% to reflect the plea of guilty. 4. Order the offender Nicolas Tannous to pay a fine of $15,000. 5. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 6. Order the offender Nicolas Tannous to pay the prosecutor's costs agreed in the amount of $25,000.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2020