SafeWork NSW v Meixing Jiang

District Court of NSW|2018-12-13

Solicitors: SafeWork NSW (Prosecutor) Cathay Lawyers (Defendant) File Number(s): 2018/191163 SafeWork NSW v Meixing Jiang

Judgment

Mr Meixing Jiang (Mr Jiang) has pleaded guilty to an offence that as a person who had a health and safety duty under s 27 of the Work Health and Safety Act 2011 (Act), to exercise due diligence to ensure that Yaofu Pty Limited (Yaofu) complied with its duty under s 19(1) of the Act, he failed to comply with that duty and the failure to comply with that duty exposed Mr Mohammad Rahmati and Mr Ashkan Tanha 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 $300,000.

Systems of work before the incident

PNA's Training Induction Check list showed that Mr Jiang, Mr Rahmati and Mr Tanha were inducted onto the Site on 5 July 2016. However, the records of Mr Rahmati and Mr Tanha were unsigned. The document was in English and was not translated.
Mr Tanha was not provided with an induction document and had not seen the Training Induction Check List before. Mr Tanha did not recall whether an induction took place. Mr Rahmati did not receive induction training for the Site. Mr Jiang did not ensure that Mr Rahmati and Mr Tanha had been inducted into the Site or ensure they had undertaken a Site tour.
Yaofu did not produce any documents in respect of its safe working procedures. Yaofu and Mr Jiang did not provide PNA with a Safe Work Method Statement (SWMS) or risk assessment regarding Mr Rahmati and Mr Tanha. PNA was only able to obtain insurance documentation from Yaofu. Mr Jiang did not ensure that a risk assessment was undertaken with respect to the work to be completed by Mr Rahmati and Mr Tanha in Basement Level 1. PNA stated that it required risk assessments or SWMS, however, no such documents were provided.
Mr Tanha and Mr Rahmati were not given any written procedures for the work at the Site. Mr Rahmati stated that no work health and safety issues were communicated to him and he did not sign any documents for the Site. Mr Jiang would communicate work tasks by giving verbal instructions to the workers in the morning.
Mr Rahmati states that no induction was provided to him when he commenced work with Mr Jiang, nor had he ever been provided with safety equipment or any documentation in relation to his work for Yaofu. Mr Rahmati stated that Mr Jiang was not on Site very often and sometimes had a supervisor, who did not speak English, inspect his work.
PNA, Mr Mark Akkari and Mr Jiang did not request to see Mr Tanha's White Card. Mr Tanha sent a photo of the White Card to Mr Jiang after the incident.

Relevant guidance material

Clauses 34 to 36 of the Work Health and Safety Regulation 2011 (NSW) (Regulation) require a risk assessment to be undertaken to identify risk control measures to minimise the risk. Yaofu did not undertake or direct its workers to undertake a risk assessment.
Clause 299 of the Regulation requires the preparation of a SWMS prior to undertaking high risk construction work. The clause requires the identification of hazards that could give rise to risks and to implement measures to control the risks. Yaofu did not undertake or direct its workers to prepare a SWMS.
The Safe Work document 'Managing the Risk of Falls at the Workplace' (Code of Practice) was available online at the time of the incident. The Code of Practice states that: "(a) Working on a solid construction provides an environment where the likelihood of a fall may be eliminated. 'Solid construction' is defined as an area that: (b) is structurally capable of supporting workers, material and any other loads applied to it; (c) is provided with barriers around its perimeter and around any openings from or through which a person could fall."
The Code of Practice also states: "The surface and its supports must be able to safely carry the expected loads, including workers, materials, tools and equipment. When in doubt, have a structural engineer determine the safe load capacity before use. Barriers (or edge protection) to prevent a person falling over edges and into holes should be provided on relevant parts of a solid construction. These include: (a) openings in floors; (b) 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. Holes, penetrations and openings through which a person could fall should be made safe immediately after being formed. If a cover is used as a control measure, it must be made of a material that is strong enough to prevent persons or objects falling through and must be securely fixed to prevent any dislodgement or accidental removal. Administrative controls may be used to support other control measures and may include 'no go' areas, permit systems, the sequencing of work and safe work procedures… 'No go' areas can be an effective method of making sure people are not exposed to the hazardous area. They require clear signs warning people not to access the hazardous area. They can be used to highlight the risks of entry to an area where there is an unguarded hazard…Relevant information and instruction should be provided about 'no go' areas with adequate supervision to ensure that no unauthorised worker enters the 'no go' area."
SafeWork NSW's 'Construction work code of practice' (Construction Code) was available at the time of the incident. The Construction Code specifies the steps for managing risks in construction work and provides a work health and safety management plan template.
Also, WorkCover NSW's 'Preventing Falls in Housing Construction Code of Practice' was available at the time of incident. It provides that: "All stairwells, atriums and voids through which a person could fall must be sturdily guarded, covered with an industrial safety net or sheeted over, regardless of the fall distance from the upper level floor…Any coverings or temporary floors and their supports must be of robust construction capable of withstanding impact loads from any potential falls."

Systems of work following the incident

Following the incident, Yaofu no longer took on work similar to the work involved in the incident. Yaofu is now in liquidation.

The offender's evidence

Mr Jiang has not previously been prosecuted or found guilty of an offence in respect of health and safety legislation in New South Wales or anywhere else in Australia.
Mr Jiang is aged 54 and has lived in Australia since 1998. He worked between 1998 and 2005 as a casual gyprock plasterer. He has worked on construction sites since 2005 and in 2012 he started a contracting business doing small bricklaying jobs for construction sites. This business was incorporated and became Yaofu. Yaofu went into liquidation on 14 September 2017.
Mr Jiang affirmed an affidavit on 27 November 2018. He said that he visited the Site a few days before the incident occurred. On this occasion, Mr Pierre Akkari showed him the Site and the location where brickwork was required. Mr Jiang was also inducted onto the Site and signed a Training Induction Checklist.
After being shown where the brickwork was required, Mr Jiang became aware that the bricks were to be laid around the doorframe to a ventilation shaft and that the ventilation shaft was covered with metal sheeting. Mr Jiang was not aware that there was no support below the metal sheeting and that it should not be walked on. There were no signs or tape blocking access to the ventilation shaft.
Mr Jiang did not enquire with Mr Pierre Akkari whether there was any support underneath the metal sheet. However, Mr Jiang assumed because the ventilation shaft was covered that there was some support underneath and therefore, there was no risk to a person walking over it. Mr Jiang was of the view that the brickwork could be undertaken without going into the ventilation shaft itself. For these reasons, Mr Jiang did not warn Mr Rahmati and Mr Tanha to avoid the ventilation shaft area.
Mr Jiang was aware that Mr Rahmati and Mr Tanha had White Cards as he observed these when they were interviewed for their employment with Yaofu. In order to obtain a White Card, an individual is required to attend a course where general work health and safety requirements for a construction worksite are taught. This includes the requirement for an induction onto a site. Workers should raise this with their employer if it has not occurred. Mr Jiang saw Mr Rahmati and Mr Tanha on the morning of the incident. They did not inform Mr Jiang that they had not been properly inducted onto the Site. For this reason, Mr Jiang assumed they had been inducted.
Mr Jiang has expressed regret for Mr Rahmati's injuries and visited him in hospital several times.
Mr Jiang is now retired, but undertakes small jobs every now and again, earing approximately $600 a week. He does not intend to run a business or employ staff in the construction industry again. He also does not intend to work in the construction industry again.

Consideration

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

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 R (No. 2) (1998) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1998) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.
The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338. His Honour Justice Basten at paragraph 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 paragraph 42 his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
My findings about the offender's level of culpability are based upon the following: 1. There was a foreseeable risk to safety; 2. Mr Jiang should have made simple enquiries with Mr Pierre Akkari as to whether the metal plate over the ventilation shaft was supported underneath. He had been working in the construction industry for 10 years and should have been more diligent. Enquiring with Mr Pierre Akkari about this would have cost nothing; 3. There was considerable guidance material publicly available relating to the risk of falling through openings at workplaces; 4. There was no temporary edge protection installed around the ventilation shaft, nor was there any signage warning of the danger; 5. No written procedures were provided to Mr Rahmati or Mr Tanha, either in English or in their native languages; 6. Mr Jiang, who was not a native English speaker, provided verbal instructions to Mr Rahmati and Mr Tanha. Neither Mr Rahmati nor Mr Tanha had a good grasp of the English language. Language barriers would have impeded efforts to maintain safety on the Site; and 7. Yaofu did not undertake any risk assessments or prepare any SWMS.
I find that the offender's level of culpability is in the mid-range.

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 at [180].
The penalty must reflect the need for specific deterrence. However the offender is no longer conducting a business, and does not intend to do so.

Aggravating factors

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

Mitigating factors

The offender has no previous convictions, so he does not have a significant record of previous convictions: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.
The offender is otherwise of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999.
The offender is unlikely to re-offend: s 21A(3(g) of the Crimes (Sentencing Procedure) Act 1999. He is no longer in business.
The offender has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has provided evidence that he has accepted responsibility for his actions and has acknowledged that the injury to Mr Rahmati was caused by his actions.
The offender entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give the offender a 25% discount for an early plea.

Capacity to pay a fine

I am required to have regard to s 6 of the Fines Act 1996 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: Jahandideh v R [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 an affidavit dated 27 November 2018 Mr Jiang said that he retired when Yaofu went into liquidation in September 2017. He has worked on small jobs "every now and again" since then, earning about $600 per week when he does work. There was no evidence of his average weekly income or his annual income. He currently lives with his wife who is also retired. The couple are supported by their son and daughter, who give them $500 to $600 a week for general living expenses. Mr Jiang lives in the family home at Lidcombe, which is registered in his wife's name alone. There was no evidence of its value. There is a mortgage to the ANZ Bank. It appears to be for a loan of $760,000, on which monthly interest is nearly $3,000. How this is afforded on the income deposed to by Mr Jiang in his affidavit was not properly explained. Why Mr Jiang no longer works full-time was not explained. Nor did he explain why he retired at age 54.
Counsel for the plaintiff acknowledged that there was an onus of proof on the defendant to establish hardship, in relation to the fine. He submitted that Mr Jiang "earns enough to keep treading water". I did raise with counsel for the defendant the matters of concern set out in the paragraph immediately above. While counsel made submissions, there was no evidence he could point to which answered the court's queries.
I conclude that the defendant has not put before the court sufficient evidence to establish that the fine should be reduced because of financial hardship. As occurs so often in these prosecutions, only selected documents have been put before the court. On the evidence given by the defendant, I do not believe that he and his wife only have an income of about $2,500 per month paid by their children, plus $600 earned by the defendant working "every now and again". They must spend much more than that on the mortgage payments and the expenses of everyday living, such as food, clothing, transport, insurance, utilities and home maintenance. The defendant has not discharged the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. Further, a substantial fine is warranted, as a result of the seriousness of the offence and the need for general deterrence for accidents of this kind, which involve a fall from a height.

Victim Impact Statement

Mr Jiang was convicted at the sentence hearing on 13 December 2018.
A Victim Impact Statement of Mr Rahmati dated 3 December 2018 was tendered. Mr Rahmati is 34 years of age and is married with two young children. He is in Australia on a Safe Haven Enterprise Visa, having come from Afghanistan. His wife and children live in Pakistan. He was supporting his family financially as a bricklayer and used to send them money from his earnings.
Mr Rahmati detailed the injuries suffered in the accident. He was taken to St George Hospital and transferred to Prince of Wales Hospital for surgery. On 7 July 2016 screws were inserted in his spine. He was told that he may never walk again. He was "absolutely devastated". He was then transferred to the Acute Spinal Unit of Prince of Wales Hospital. On 15 July 2016 he was transferred to the Rehab Spinal Unit. On 8 August 2016 he had surgery to his right foot which included screws to fix the fracture. He was discharged home on 8 November 2016. On 4 June 2018 he had further surgery to the right foot, being a joint fusion and bone graft. He continued to receive treatment including physiotherapy, hydrotherapy and medication.
As a result of his injuries Mr Rahmati is in constant severe pain and is able to walk only with difficulty. He cannot sit for a long time. He cannot perform a lot of things around the house. He has been unable to return to any work. He is depressed and he takes a lot of medication. He has difficulty sleeping due to pain. He said "my life has been destroyed".
Mr Rahmati said that he does not know what he will be able to do in the future and this has caused him a lot of concern. He worries how he will support his family. All he has ever done is physical work. He is still looking forward to his family migrating to Australia so they can start a life here as a family. In this country he is alone and without any family support. He cannot travel to see his wife and children due to his injuries, and he cannot afford to travel in any event as his income is restricted to workers compensation payments.
I take into account the Victim Impact Statement in determining the appropriate punishment for the offence, on the basis that the harm caused to the family is an aspect of harm done to the community: s 28(4) Crimes (Sentencing Procedure) Act 1999. I find that it is appropriate to take this into account.

Costs

The parties have agreed to an order that the offender is to pay the prosecutor's costs agreed in the amount of $15,000.

Penalty for Mr Jiang

The offender is convicted.
The appropriate fine is $30,000 but that will be reduced by 25% to reflect the plea of guilty.
Order the offender to pay a fine of $22,500.
Order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
Order the offender to pay the prosecutor's costs agreed in the amount of $15,000.

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: 17 December 2018

Work Health and Safety Regulation 2011(NSW)

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Judgment (17 paragraphs)

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