Safework NSW v NSW Formwork Pty Limited

Safework NSW v NSW Formwork Pty Limited - [2019] NSWDC 631 - NSWDC 2019 case summary — Zoe

Background

The parties presented an Agreed Statement of Facts and this material is summarised below.
HCM Building Pty Ltd (HCM Building) was a person conducting a business or undertaking (PCBU) which provided construction services as the builder of a three-storey residential building and a basement carpark located at 1-5 Greenhills Street, Croydon, New South Wales (the workplace).
The property at Croydon was owned by The Croydon Group Pty Ltd (The Croydon Group).
HCM Group Pty Ltd (HCM Group) employed workers on behalf of HCM Building to manage the construction project. HCM Group engaged HCM Building to undertake the construction project. HCM Building engaged contractors to undertake the works.
On 4 June 2014 HCM Group lodged a development application with Burwood Council to construct a residential building at 1-5 Greenhills Street Croydon. The value of the work was $6,501,371.00. Council approved the construction on 19 October 2015. Further approvals for the construction works were sought by HCM Group on 9 June 2016 and 15 August 2016.
HCM Building, HCM Group and The Croydon Group are related companies with the same owner and sole director, Mr John Bouchahine.
Mr Bouchahine was responsible for work, health and safety issues at the workplace. He determined the construction schedule. Mr Bouchahine visited the site approximately once or twice a week. He was at the site on the day of the incident assisting with the arrival of equipment and operating a crane. Mr Bouchahine received a wage from HCM Group.
HCM Group employed Mr Paule Mezyed as the Site Foreman for the workplace. Mr Mezyed reported to Mr Bouchahine. Mr Bouchahine informed him of the daily construction schedule. Mr Mezyed and Mr Bouchahine both conducted inspections at the workplace. Mr Mezyed was responsible for work, health and safety issues at the workplace in Mr Bouchahine's absence. He was also responsible for conducting site inductions at the workplace.
Mike Dalzell Pty Ltd was a PCBU which provided business management services for construction sites. Mr Michael Dalzell (Mr Dalzell) was the director of Mike Dalzell Pty Ltd.
HCM Building had engaged Mr Dalzell since 2012 to provide safety consultancy services including providing a documented safety management system. He provided services to HCM Group and HCM Building as requested.
NSW Formwork Pty Ltd (NSW Formwork) was a PCBU which provided formwork, steel fixing and concrete services.
Mr Fadi Doueihi was the sole director of NSW Formwork.

[4]

HCM Building and NSW Formwork Agreement

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

[6]

The Incident

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

[10]

NSW Formwork Safety Systems

NSW Formwork had a "NSW Formwork Site Specific Induction & Safety Rules" document (NSW Formwork Safety Rules) and a "Safe Work Method Statement - Formwork Installation" (NSW Formwork SWMS) for the workplace.
Both documents were provided to HCM Building prior to work being carried out at the workplace.
HCM Group, HCM Building and NSW Formwork relied on the NSW Formwork Safety Rules and the NSW Formwork SWMS as the safe system of work for the workplace.
The NSW Formwork Safety Rules provided that "All Contractors must apply a Duty of Care responsibility by carrying out a Risk Assessment of their workplace on a continual basis and complying with Work Procedure as per their Work Method Statement".
The NSW Formwork SWMS identified Mr Doueihi as the person responsible for ensuring compliance with, and review of, the NSW Formwork SWMS.
Step 1 of the NSW Formwork SWMS required NSW Formwork to "Plan the job prior to arriving on site". The hazards identified in Step 1 included inadequate training, consultation and planning. The control measures required to be implemented included reviewing the principal contractor's Site Safety Plan, and providing adequate and competent supervision.
HCM Group and HCM Building did not have a Site Safety Plan.
NSW Formwork did not review HCM Building's Work Health Safety Rehabilitation and Environmental System Manual prior to work being carried out at the workplace.
Step 9 of NSW Formwork's SWMS identified slips and falls around frames and reo as a hazard during the task of installing the Dincel/ASF formwork system. At the time of the incident the Dincel/AFS Formwork system was not being installed, but the workers were preparing the workplace for the installation later that day. There was no requirement for the vertical steel reo bars to be exposed at this time. The control measures required to be implemented in the SWMS during the actual installation process were: 1. Clearing the area of trip hazards to install the base plate for Dincel or ready wall; 2. Remove bar caps to allow placement of base; and 3. When base plate was secure with pins reinstall reo caps.
NSW Formwork's Supervisors Mr Doueihi and Mr Boumoussa were required to implement these control measures.
While NSW Formwork had identified slips and falls around reo bars as a hazard during the installation process, the general risk of exposed or uncapped vertical steel reo bars was not documented in the SWMS prior to the step of the actual physical installation of the Dincel/AFS. The risk of uncapped or exposed vertical steel reo bars in the general work environment was not identified in the SWMS, nor were the control measures identified in the SWMS.
Step 3 of the NSW Formwork SWMS required NSW Formwork's supervisor to conduct site inspections to identify site conditions.
NSW Formwork did not undertake an inspection of the workplace, prior to work being conducted to ensure that the vertical steel reo bars were not exposed.
Neither Mr Bouchahine nor Mr Doueihi ensured that NSW Formwork systems were followed at the site.

[11]

Work Health Safety Rehabilitation and Environmental System Manual

Mr Dalzell had developed a Work Health Safety Rehabilitation and Environmental System Manual (the Manual) for HCM Building. The Manual was readily available on HCM Building's web portal prior to the incident. The Manual was headed "HCM Construction Pty Ltd" and "Croydon Development 20 March 2016" on its covering page. No entity named HCM Construction Pty Ltd is registered with ASIC.
HCM Building Site Managers were required to contact Mr Dalzell when they were ready to proceed with the site and HCM Building's staff would print the Manual.
The Manual outlined a Construction Organisation Chart:
Health and Safety Representative reported to the Site Safety Manager.
The Site Safety Manager reported to the Site Supervisor.
The Site Supervisor reported to the Site Manager and Compliance Manager.
The Site Manager was to report to the Managing Director.
The Project Manager was to report to the Managing Director.
The Compliance Manager was to report to HCM Building's Office.
HCM Group did not hire any Site Safety Manager or Compliance Manager for the workplace as required by the Manual. It was HCM Group's and HCM Building's responsibility to ensure that the above roles were filled prior to work being carried out at the workplace.
Neither HCM Group nor HCM Building instructed Mr Mezyed to contact Mr Dalzell or print off the Manual for the workplace. It was HCM Group's and HCM Building's responsibility to inform Mr Mezyed that he was required to contact Mr Dalzell or print off the Manual for the workplace prior to the work being carried out at the workplace.
The Manual's Document Control (Section 3) provided that "the purpose of this document was to ensure that all personnel had easy access at all times to the Safety Management System documents they needed to perform their work."
The Manual was not available to any HCM Group, HCM Building or NSW Formwork workers at the workplace until after the incident. It was HCM Group's and HCM Building's responsibility to ensure that all workers have access to the Manual at the workplace.
The Manual also required HCM Group and HCM Building to distribute the Manual to "all interested parties directly or indirectly involved in the work process" and to register the details of all Manual users, such as their names, positions and issue date on the Manual's Form Distribution List (Section 3.2). It also required the users to provide their signatures.
HCM Group and HCM Building did not register any of its workers or NSW Formwork's employee details on the Manual's Form Distribution List. HCM Group and HCM Building did not distribute the Manual to NSW Formwork prior to work being carried out at the workplace.
The Manual's "Implementation Flow Chart" (Section 5.0) outlined the following stages of implementation:

Builders Pre-Start
Contractors Pre-Start
Induction
Records
Consultation
Hazard Reporting
Reporting.

[12]

Builders Pre-Start Phase

The Manual's "Hazard Identification" section (Section 15) provided that "anyone in control of the workplace was required to identify the potential hazards of the proposed work, assess the risks involved and develop controls to eliminate, or minimise, the risk". It also provided that "the controller of a workplace must conduct a separate hazard assessment".
It was HCM Group's and HCM Building's responsibility to ensure that the potential hazards of the proposed work were identified, that risks involved were assessed, controls were developed to eliminate or minimise the risk and that a separate hazard assessment was conducted.
HCM Group and HCM Building did not inform or instruct Mr Mezyed to identify the potential hazards of the proposed work, assess the risks involved, develop controls to eliminate or minimise the risk or conduct a separate hazard assessment as required by the Manual.
HCM Group and HCM Building did not conduct a risk assessment at the workplace.
The Manual's hazard identification procedure also stated that all work activities required a site specific Safe Work Method Statement (SWMS). The SWMS detailed how the work would be carried out for each of the work activities and associated job steps identified in the Work Method.
NSW Formwork had previously provided HCM Building with the NSW Formwork SWMS prior to the work being carried out at the workplace. HCM Building relied on the NSW Formwork SWMS as the safe system of work for the workplace before the incident. The SWMS was not adequate.
HCM Group and HCM Building did not develop a site specific SWMS prior to the incident.
In the "Builders Pre-Start" phase, HCM Group and HCM Building were required to complete the Manual's "Project Construction Hazard Identification Form" (Section 15.2). This Form required HCM Building to provide an answer to the following questions: 1. Whether work at height was being performed? 2. Whether a Project Manager was appointed? 3. Whether a Site Manager was appointed? 4. Whether a WHS Manager was appointed? 5. Whether a Site Foreman was appointed? 6. Whether the roles and responsibilities had been assigned? 7. Had the roles and responsibilities been signed? 8. Was there a health and safety plan? 9. Had a site induction had been prepared? 10. Who would ensure that all employees had signed a Safe Work Method Statement?
This Identification Form was to be completed by Site Management prior to the start of the project at the workplace (Section 15.1).
It was HCM Group's and HCM Building's responsibility to ensure that Mr Mezyed complete the Project Construction Hazard Identification Form as required.
HCM Group and HCM Building did not complete the Project Construction Hazard Identification Form prior to the start of the construction of the workplace as required.
HCM Group and HCM Building did not inform Mr Mezyed of his role and responsibilities for the workplace prior to works being carried out at the workplace.
It was HCM Group's and HCM Building's responsibility to identify the workplace site management role and responsibilities and record them after consultation with all individuals.
It was HCM Group's and HCM Building's responsibility to outline the workplace's site-specific risks and include them in the Site Specific Safety Induction Form.
HCM Group and HCM Building did not identify and outline the workplace's site-specific risks and record them on the Site Specific Safety Induction Form.

[13]

Contractors Pre-Start

Section 8.2 of the Manual provided that the Contractor's responsibilities were to ensure that "all work areas and processes were safe prior to workers entering an area or undertaking a work process".
As part of "Contractors Pre Start" phase, the Contractor had to provide a compliant SWMS prior to attending the workplace, which was to be registered on a Form 18.4 Safe Work Method Statement Register Form. The Manual also required Project Management to ensure the Contractor provide a compliant SWMS prior to the Contractor attending the site for induction. The Manual also required the Compliance Manager to advise on the compliance status of the Contractor's SWMS (Section 18.1).
The Manual further provided that the Compliance Manager was the only person who was authorised to review, audit and approve the SWMS for the Contractor's pre-start procedure.
The Compliance Manager was to review the SWMS against the Sub-Contractor's SWMS Checklist Form (Section 18.5) and advise on the status of compliance identified. This Form had to be completed and compliant prior to the contractor's commencement at the workplace.
If the SWMS was compliant, it would be provided to the site induction personnel and Site Supervisor for review. HCM Group's and HCM Building's Site Supervisor was also required to read the Contractor's SWMS and sign off on the Sub-Contractor's SWMS Checklist Form.
It was HCM Group's and HCM Building's responsibility to register NSW Formwork's SWMS and review NSW Formwork's SWMS against the Manual's Sub-Contractor's SWMS Checklist Form.
It was HCM Group's and HCM Building's responsibility to appoint a Compliance Manager for the workplace and to review and check that NSW Formwork's SWMS was compliant prior to work being carried out at the workplace.
Neither HCM Group nor HCM Building appointed a Compliance Manager, registered NSW Formwork's SWMS or reviewed NSW Formwork's SWMS against the Checklist Form to check that it was compliant prior to NSW Formwork commencing work at the workplace.
HCM Group and HCM Building relied on NSW Formwork's SWMS to control the risk of falling onto exposed or uncapped vertical steel reo bars at the workplace. However, the control measures outlined in Step 9 of NSW Formwork's SWMS were not sufficient to eliminate or minimise the risk of workers falling onto exposed or uncapped vertical steel reo bars.
It was HCM Group's and HCM Building's responsibility to ensure that NSW Formwork conducted an adequate risk assessment to identify and provide adequate control measures to address the risk.
The Manual's "Hazard Identification" procedure also required the Contractor's supervisor to complete the Contractor's Hazard Assessment Form (Form 15.3.00) and Sub-Trade Identification Check List (Section 15.3) prior to any trade commencing on site and was to be used to assist in identifying any hazards by the work activity. The Sub-Trade Identification Checklist included a Formwork Hazard Assessment (Form 15.3.012) and Steel-Fixing Hazard Assessment (Form 15.3.027).
As part of the Steel Fixing Hazard Assessment (Form 15.3.027), the contractor was required to address the question of "who would ensure caps were fitted to reo bars?"
Further, this Sub-Contractor Hazard Assessment was to be presented to the employees of the Contractor. The names and signatures of the contractor's workers would be recorded on Form 15.4 Consultation of Hazard Assessment stating that they understood the responsibilities of identifying hazards and unsafe work practices to their supervisor.
It was HCM Group's and HCM Building's responsibility to provide NSW Formwork with the Contractor's Hazard Assessment Form, Sub-Trade Identification Checklist, Formwork Hazard Assessment and Steel Fixing Hazard Assessment.
It was also HCM Group's and HCM Building's responsibility to ensure that the Sub-Trade Contractor Hazard Assessment was presented to NSW Formwork's workers to ensure they understood the responsibilities of identifying hazards and unsafe work practices, including the hazards of undertaking formwork duties near exposed vertical steel reo bars.
HCM Group and HCM Building did not provide NSW Formwork with the Contractor's Hazard Assessment Form, Sub-Trade Identification Checklist, Formwork Hazard Assessment Form and Steel Fixing Hazard Assessment to complete prior to any works being carried out at the workplace.
HCM Group and HCM Building did not ensure that NSW Formwork completed the Sub-Trade Checklist and the Steel Hazard Assessment Form to assist in identifying any hazards prior to the incident, including the risk of working near exposed or uncapped vertical steel reo bars and ensuring that all reo bars were securely covered prior to work being commenced at the workplace.
As the manual was not provided to NSW Formwork, NSW Formwork did not present the Manual's Contractor's Hazard Assessment Form, Formwork Assessment and Steel Fixing Hazard Assessment to Mr Mansour and Mr Boumoussa.

[16]

Hazard Reporting Phase

The Manual's "Hazard Reporting" phase provided that "hazard reporting of any issues on site were to be recorded on the Hazard Reporting Form (Section 14.12) to the site management."
This Form required the identification of the hazard or risk, location of the hazard or risk and risk score. It also required the Site Supervisor to then outline the actions undertaken to address the risk, the person who undertook those actions and the date of the completed action to ensure that all issues are appropriately addressed. The Manual also required this Form to be provided to the Work Health Safety Representative.
It was HCM Group's, HCM Building's and NSW Formwork's responsibility to identify, report the hazard of exposed vertical steel reo bars and outline the actions required to be undertaken at the workplace to address the hazard.
Neither HCM Group, HCM Building nor NSW Formwork identified the hazard of exposed vertical steel reo bars, the location of the hazard, risk score, or actions required to be undertaken to address the hazard.
Toolbox talks were also mandatory as part of its "Hazard Reporting" phrase. The Manual provided that toolbox talks would be used to help the site management, to provide a forum for workers to have their say about safety issues and to help ensure safety awareness is maintained. All toolbox talks would be recorded on Record of Tool Box Talk Form (Section 14.13) and signed off by participants. Any corrective action would be followed up and signed off by the nominated site supervisor. This Form was also used to record any directions to the workers and employees on site and the Form was "required to be signed by all workers involved".
HCM Group, HCM Building and NSW Formwork did not conduct formal toolbox talks and record their toolbox talks on the Manual's Record of Tool Box Talk Form.
The Manual also outlined HCM Building's "Reporting" requirements. Firstly, weekly inspections were to be conducted and the Weekly Site Inspection Form filled out (Section 28.7). Blank forms, pdf and a phone app were available from the WHS System and Compliance Manager. The original form was to be completed by the Site Management and Compliance Manager and the data or fax copy must be provided to the management weekly. Further, this Form was to be "completed and retained on site for audits and submitted to the Compliance Manager".
As part of its reporting requirements, all contractors on site must complete "Contractors Weekly Reporting Form" (Section 28.8). Project Management was to ensure that forms from the contractors were collected and retained on site. The Contractor was required to identify any hazards they wished to report as part of this Form. The Contractor was also required to fill out the "Contractors Record of Weekly Tool Box Talk" and all employees of the contractors present at the toolbox talk were required to sign it.
HCM Group and HCM Building did not conduct weekly inspections
NSW Formwork did not fill out the Contractors Weekly Reporting Form as required. NSW Formwork did not complete the Contractors Weekly Tool Box Talk.
Neither Mr Bouchahine nor Mr Doueihi ensured that HCM Group's or HCM Building's documented systems were followed at the site.

[18]

Working at Heights Near Exposed or Uncapped Vertical Steel Reo Bars

The following guidance materials were available to control the risk of falling onto exposed vertical steel reo bars at the workplace prior to the incident.
WorkCover NSW Code of Practice "Managing the Risks of Falls at Workplaces" 2015 (Falls Code) recommended: 1. In section 2.1 "How to Identify fall hazards" to inspect the workplace for "edges - protection for open edges of floors, working platforms, walkways, walls or roofs" and "holes, openings or excavations - which will require guarding"; 2. In section 3.2 "Work on Solid Construction" that barriers (or edge protection) to prevent a person falling over edges and into holes should be provided on relevant parts of a solid construction. These include: the perimeters of buildings or other structures, mezzanine floors, openings in floors or the open edge of a stair, landing, platform or shaft opening. The barrier should be designed and constructed to withstand the force of someone falling against it. Edge protection should consist of guard rails, solid balustrades or other structural components.
HCM Building and NSW Formwork were required to install edge protection around the leading edges of the formwork deck on the ground floor of the workplace directly above where the exposed vertical steel reo bars were located on the basement level at the workplace, in accordance with the Falls Code.
HCM Building and NSW Formwork did not install edge protection in the incident area.
The WorkCover Code of Practice - Formwork 1998 (1998 Code) was developed based on previous occupational health and safety legislation. This Code of Practice is still current and can be relied on to instruct duty holders on how to meet their WHS obligations in relation to fall prevention onto exposed vertical steel reo bars.
Section 3.2 of the 1998 Code outlines planning practices a principal contractor should (in consultation with its contractor) employ before commencing formwork on a construction site. These include an assessment of the risks involved in carrying out the work and identifying the most appropriate methods to control any risk of injury.
Section 3.3 of the 1998 Code outlines planning practices a contractor should carry out in addition to those in consultation with the principal contractor, including: 1. An assessment of the risk in carrying out the work. 2. Identifying the most appropriate methods of preventing the risk of injury including from falls, slips and trips. 3. Providing a documented SWMS describing the sequence of work tasks and activities and how the work is to be done safely. This work statement should take into account an assessment of the risk involved in carrying out the work. 4. Ensuring that the sequence of work tasks is designed to increase safety.
Section 4 of the 1998 Code provides that the principal contractor and the contractor have an obligation under the Occupational Health and Safety Act 1983 (NSW) to provide and maintain a workplace that is safe and without risks to health for their employees in relation to those matters over which they have control. Control measures to prevent persons working at heights from falling should be provided and maintained as part of a safe system of work.
Section 4.1 of the 1998 Code said that a system of control must be provided for persons exposed to a risk of falling. Accordingly, a risk assessment should be conducted for all work irrespective of height and appropriate control measures implemented. Control measures that provide a high level of protection, such as those that prevent falls, should be used in preference to those providing a lower level of protection such as fall arrest systems.
Systems of fall protection should also be provided for persons installing and removing safeguards. A system to prevent or arrest falls should be provided, irrespective of height, if the risk assessment identifies a hazardous situation such as where the surface onto which a person may fall would cause serious injuries, for example, a fall onto reinforcing steel starter bars.
SafeWork South Australia's "Hazard Alert - Hazards of Reo Bars" (SafeWork SA Safety Alert) dated December 2012 was also readily available on the web at the time of the incident. This Alert provides a list of actions to mitigate the risk of hazard of uncapped reinforcement bars: 1. Carry out a detailed risk assessment prior to start starting the job, consider all risks that could arise, and eliminate them from the work process, or put in place measures to control the risk. 2. Plan tasks to eliminate or reduce any risks associated with formwork and the potential hazards associated with the use of reo bars. 3. Provide a safe means of access to and egress from formwork. 4. Exposed reo bars should be securely capped where there is any potential risk to workers. 5. Ensure that reo bar caps are maintained throughout the progress of the task. 6. Reinforced reo bar caps should be considered when working at heights around vertical reo bars. 7. Note that non-reinforced reo bar caps only prevent minor scratches and cuts, they will not prevent impalement.
SafeWork NSW's "Housing Industry Site Safety Pack" (SafeWork Safety Pack) was also readily available on SafeWork's website at the time of the incident. The Pack contained a Form titled "Site Specific Risk Assessment" (WHS Form 04). One of the questions required to be addressed in conducting a risk assessment is whether "there is a risk of injury due to impaling hazards not being appropriately protected in the work area? (e.g star pickets, reo bars, stacked pallet stack)."
NSW Formwork, HCM Group, HCM Building did not conduct a risk assessment involving working at heights near exposed and/or vertical steel reo bars or identify the most appropriate methods to control the risk of falling onto exposed or uncapped vertical steel reo bars as required by the 1998 Code, SafeWork SA Alert and SafeWork Safety Pack.
Neither Mr Bouchahine nor Mr Doueihi ensured that their respective companies had conducted an adequate risk assessment or ensured an adequate SWMS was in place.

[21]

The offender's evidence

Mr Fadi Doueihi swore an affidavit on 23 October 2019 (DX1). He is the sole director of the offender. The company has been trading for 11 years, providing formwork on building construction sites throughout Sydney.
As a result of the accident Mr Doueihi has tried to improve the offender's health and safety policies and procedures. In March 2019 he sat for a refresher course and obtained a Certificate III in Formwork/Falsework. He promoted his wife Ms Vera Achkar to the full-time position of Occupational Health and Safety Officer. Mr Mansour was promoted to be a Health and Safety Representative. All the changes which they have recommended have been implemented on the offender's work sites. All toolbox meetings have been documented since the accident. Prior to workers commencing on any site, Mr Doueihi ensures that the site is checked carefully to identify any hazards. The SWMS has been constantly improved since the accident occurred.
The offender has purchased new steel guard rails which can be assembled and installed, despite the platform on which they are being erected not being trimmed and even. Previously wooden guard rails were used and could only be erected on platforms which had been trimmed and made even.
On the day of the accident Mr Doueihi arrived at the work site but did not notice that some of the yellow caps were missing from the reo bars. Those caps were in place on the previous evening. Mr Doueihi instructed Mr Mansour to Lasermark the underside of the formwork deck to enable the edge perimeter of the formwork deck to be trimmed. Mr Doueihi intended to install wooden guard rails on the deck after it had been trimmed.
When the accident occurred Mr Doueihi called the ambulance and then followed it to Royal Prince Alfred Hospital. Mr Doueihi and his wife regularly visited Mr Mansour in hospital and assisted him as much as they could. They paid Mr Mansour his full pay after the workers compensation insurer reduced his pay. Through Mr Doueihi, the offender accepts responsibility for the accident and acknowledges that it failed to comply with its duty to ensure, so far as is reasonably practicable, the health and safety of all workers.
Ms Vera Achkar swore an affidavit on 23 October 2017 (DX2).
Prior to the commission of the offence Ms Achkar was employed by the offender on a part-time basis as an Administration Officer. Since the offence she has been employed on a full-time basis as the Business Manager/Occupational Health and Safety Officer of the offender. Initially she educated herself by consulting an online toolkit on the SafeWork NSW website. In March 2019 she commenced studying for a Certificate IV in Work Health and Safety. Ms Achkar is due to complete this course in March 2020. As part of the course she has attended a five-day seminar in relation to occupational health and safety practices.
In her affidavit Ms Achkar sets out her duties as the Occupational Health and Safety Officer of the offender. She also sets out the duties of Mr Mansour, who is now the Health and Safety Represenative.
Ms Achkar has continuously updated the offender's SWMS. She keeps up to date with changes to the Act and WHS Regulations by receiving emails from SafeWork NSW as well as from the Formwork Industry Association of Australia. Ms Achkar and Mr Doueihi have attended three workshops presented by SafeWork NSW in relation to toolbox safety meetings and SWMSs.
The current SWMS has incorporated all of the control measures identified in the Agreed Statement of Facts. It now incorporates all of the control measures identified in the 1998 Code and the Falls Code.
The offender now uses an app to record daily safety inspections and work progress. The app also records minutes of toolbox meetings. The app generates forms for safety inductions, spot inspections, hazard identification and risk assessment.
In February 2019 Mr Doueihi together with all of his contractors and employees attended a Safe Working at Heights course. Mr Mansour attended a Test and Tag course. Ms Achkar and Mr Mansour attended a First Aid course. Ms Achkar and Mr Doueihi have conducted workshops for all of their employees and contractors on the use of ladders, use of electrical equipment and leads, manual handling, and how to respond to emergencies. There is constant discussion between Ms Achkar and Mr Doueihi on all matters concerning workplace safety and managing risks.
Annexed to the affidavit of Ms Achkar are the financial statements of the company for the financial years 2016, 2017 and 2018. The 2019 financial statements were separately tendered (DX3). The company currently employs 10 permanent part-time and full-time staff members. It currently works on two residential development projects.
The company has $73,414.25 held in two bank accounts. One is a GST account holding approximately $45,000. The offender's wage bill including payments to sub-contractors is $65,000 per week. The company expects to make a profit of $47,000 from the two projects presently being undertaken at Belfield and Liverpool. The company does not have any further contracts to undertake work beyond the two current projects.
Ms Achkar concludes her affidavit by saying: "If the court was minded imposing [sic] a fine on the company beyond the sum of $40,000 it would have great difficulty in being able to pay this amount and continue to be able to pay its workers and sub-contractors."
The financial statements of the offender show the following trading income and profit before income tax: YEAR TRADING INCOME PROFIT BEFORE INCOME TAX 2016 $1,088,348.27 $21,715.68 2017 $1,751,428.72 $29,063.58 2018 $2,712,183.83 $34,145.24 2019 $3,259,330.74 $28,853.50

[22]

On the face of those figures, it is surprising that Mr Doueihi continues to operate this company. The profit made by the offender each year is a very small fraction of the trading income. For example in the 2019 tax year the profit before income tax was 0.89% of the trading income. Mr Doueihi would be better off working for a wage than running company with a $3 million turnover to obtain that very modest profit.
There are of course other benefits to Mr Doueihi and his wife which flow from running the company. Mr Doueihi is paid a wage of $87,000 before tax and Mrs Doueihi is paid $40,000 before tax. Until 2019 the offender owned a Landcruiser motor vehicle. This was paid out in 2019. Ms Achkar gave evidence that she paid out $79,000 owed to a financier on the vehicle, from her own savings. She drove the vehicle partly for work and partly for personal use. In 2019 the offender paid fringe benefits tax of $8,258.37, which related to her private use of the Landcruiser.
In the past the company has also owned a Range Rover motor vehicle. Ms Achkar gave evidence that this was sold for $12,000. The 2019 accounts show that it was sold for $17,000 against a depreciated value of $13,798, resulting in a profit of $3,213.
The 2019 accounts show that the Landcruiser was depreciated by $34,261 and disposed of on 21 May 2019 for $20,000.
The 2019 accounts show as an expense a loss on sale of assets of $32,005.62. Ms Achkar could not explain how this figure was made up. The Landcruiser was sold, according to the depreciation schedule for 2019, for a loss of $5,109. Thus the company must have had other assets which were sold during the 2019 tax year.
Mr Doueihi and Ms Achkar both gave evidence that the family home had a value of $960,000 and was subject to a mortgage to NAB of $570,000. Ms Achkar gave evidence that the repayments on this mortgage were $1,200 per week. How the family affords mortgage payments of over $60,000 per annum, when there is wage income of $127,000 before tax, was not explained.

[24]

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].
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 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.
The Court of Criminal Appeal has recently examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. His Honour Justice Basten at para 34, under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors."
Further at para 42 his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
At para 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the offender's level of culpability are based upon the following: 1. The risks of a fall unto uncapped reo bars, and a fall from an unguarded height, were obvious and foreseeable. Such risks in fact were known to and recognised by the offender. Guidance material in any event made such risks known to the industry generally. 2. The likelihood of the risk of falling onto the reo bars was significant, either because a worker such as Mr Mansour might fall off the ladder, or a worker on the ground level deck such as Mr Boumoussa might fall over the unguarded edge. 3. There was a potential for death or serious injury to result from a fall from height onto uncapped reo bars. Mr Mansour could easily have died or been catastrophically injured. 4. Caps for reo bars cost 35 cents each and were readily available. In fact the bars had been capped before the morning of the accident. A guardrail for the ground level deck was already on site but had not been installed by NSW Formwork. 5. There was no burden or inconvenience in capping the reo bars or installing the guardrail. Both steps were already part of the job and were presumably built into the price for the work. 6. The serious injury to Mr Mansour was a manifestation of the risk. 7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence. 8. The offender was the specialist formwork contractor on the site and had a non-delegable duty to take reasonably practicable steps to ensure safety. It could not simply rely upon the principal contractor to ensure safety. In spite of the extensive references in the Statement of Agreed Facts to the failures of HCM Building's documented safety system, no submissions were made on that topic. This was a proper and realistic approach by counsel for the offender. Even if the Manual had been on site, it would not have told the offender anything which it did not already know. 9. It was the direct instruction given by Mr Doueihi for Mr Mansour to work in the vicinity of the uncapped reo bars which placed Mr Mansour in harm's way.
I find that the offender's level of culpability is in the mid range.

[28]

Parity

HCM Building was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident in which Mr Mansour was injured.
Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v R [2011] HCA 49; (2011) 244 CLR 462 at [30].
The principle operates in the nature of a "check" required of the sentencing Court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 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 HCM Building and the offender. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].
I find that the offender was more culpable than HCM Building. The first 7 findings in par 182 above concerning objective seriousness are equally applicable to both offenders. However NSW Formwork: 1. was the employer of Mr Mansour 2. directed Mr Mansour to get up the ladder to perform the Lasermarking 3. was the specialist formwork contractor at the worksite, and 4. should have installed suitable guardrails to prevent its employee falling from a height.

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