SafeWork NSW v Poletti Corporation Pty Ltd

Events leading up to the incident

1. The external concrete surfaces of the West Tower needed to be rendered and then painted. The renderers were engaged by Manly Warringah Plastering Pty Ltd (MWP). The renderers had to complete their work before the surfaces could be painted, with one coat of primer and then finishing coats of paint. Morris Radovanovic was a painter engaged by MJM Painting Services Pty Ltd (MJM). In the period leading up to the incident, Mr Radovanovic was required to patch the concrete ceilings of the balconies on the levels where the renderers were working. Mr Radovanovic observed the renderers removing the barricade to the void and placing planks and stools across the void to allow them to reach the upper parts of the concrete column in the void area. He also saw the renderers install a piece of plywood over the void by nailing it to the work deck. This piece of plywood was intended to catch any render that may fall through the void onto workers or finished surfaces below. To Mr Radovanovic's observation, the renderers usually removed the plywood from the void area when they had completed their work.
2. Zdravko Krajisnik was another painter engaged by MJM. In the period leading up to the incident he was required to paint the external surfaces of the West Tower from the work platforms. Mr Krajisnik observed the work of a particular renderer in the vicinity of the void in that period. The renderer was from Iran and Mr Krajisnik did not know his name. The renderer was supervised by a man from Iraq, whose name was Ahmad. Mr Krajisnik observed that the render was applied in two coats, a rough coat followed by a smooth coat. After the smooth coat was applied, the renderer would wipe off the excess with a wet sponge. This caused excess render and dirty water to fall down from the rendered surfaces, potentially onto the finished surfaces below. Mr Krajisnik observed the renderer place a piece of plywood on top of the work platform and wedge it against the underside of the balcony to cover the void and stop the excess render and water falling down. The renderer would then usually remove the piece of plywood when he completed his work.
3. About two to three weeks prior to the incident, Mr Krajisnik was working in the vicinity of the void painting the concrete surfaces. At that time a piece of plywood was covering the void. Mr Krajisnik was holding a roller in one hand and a bucket in the other. He stepped onto the piece of plywood and it gave way under his weight. He was able to catch himself by putting his arms over the raised balcony spandrel and holding on. Miro Maric, the MJM supervisor, and Ahmad were close by and came to assist him.
4. Mr Krajisnik suffered some abrasions to his knees and arms from contact with the rough surface of the concrete. He did not report the incident to the Karimbla Safety Officer because he was scared that he may be sent home. He had been sent home on two earlier occasions for failing to wear a hard hat, when it had fallen off during the course of his work. Mr Krajisnik went to the ground level to compose himself. He was moved to another job for a few weeks. He did not return to the site until after the incident.
5. During the week of 15-20 February 2016, Aram Hekimian, a safety officer employed by Karimbla, became concerned as to the extent of the vertical and horizontal gaps on the middle level of the finishing screens. Mr Hekimian thought that persons and/or tools and materials could fall between the gaps creating a risk to workers on the finishing screens. Mr Hekimian wanted hinge flaps installed to the leading edge of the work platforms on the middle level similar to that installed on the bottom level of the finishing screens. Mr Hekimian raised these concerns with Mr Ferrara, who was in charge of the system. Mr Hekimian was told to speak to Mauro Poletti, the director of the offender. A few days later, Mr Hekimian spoke to Mr Poletti. Mr Poletti told Mr Hekimian that the horizontal and vertical gaps complied with the Australian Standard and that he would not be installing hinged flaps.
6. Mr Hekimian was not satisfied with this response and thought that further measures to protect the workers using the finishing screens were necessary. Mr Hekimian called an extraordinary safety meeting of contractors on Saturday 20 February 2016. At that meeting, Mr Hekimian told the representatives of the relevant subcontractors, that their workers would be required to use harnesses attached by a lanyard to a static line when using the screens. Mr Hekimian arranged to purchase a number of static lines and for external training providers to attend the site to enable any relevant workers to obtain a working at height ticket, if they did not already hold one. Mr Poletti attended that meeting on behalf of the offender and Mr Maric attended on behalf of MJM.
7. On 20 February 2016 Mr Ferrara noticed the renderers were using a piece of plywood (approximately 800mm x 800mm) to cover the void. On seeing this he became concerned that if it was not removed it could lead to someone stepping onto it and falling through the void.

Events of 22 February 2016

1. At approximately 6:30am on 22 February 2016, Mr Posa was engaged by MJM to perform work at the site as a painter. A short time later, he was sent to Level 27 of the West Tower to assist Mr Radovanovic. Mr Posa was not told that by Mr Maric he needed to wear a harness to work from the platforms attached to the finishing screens. Mr Radovanovic told Mr Posa to paint the external concrete surfaces of the West Tower from North to South and then the East. Mr Radovanovic showed Mr Posa where to paint by walking around the slab of Level 27 but he did not go onto the work platforms. The work required Mr Posa to work in a clockwise direction, around the perimeter of the building, on the work platforms on the top level of the finishing screens.
2. When Mr Posa approached the void, he was close to finishing the task he had been assigned. A piece of dark plywood was installed over the void. Mr Posa kicked the board twice to see if it was secure. When the board did not move, he stepped onto the board to paint the column. The board gave way and Mr Posa fell about 6 metres from the top level of the finishing screen on Level 27 to the bottom level of the finishing screens on Level 25. Mr Posa suffered a head laceration, an injury to his shoulder, a fractured wrist and three fractured ribs.
3. Mr Posa was taken to hospital by ambulance.

Events after the incident

1. By 24 February 2016, the offender had installed plywood flaps on the leading edge of the work platforms on the middle level of the finishing screens.
2. In addition, the offender fitted a plank to the top two levels of the finishing screens to fill the void by bolting two pieces of steel C channel to the existing bracket and purlins and then affixing a piece of plywood to the top of the C channel. After the plank was fitted, the gaps around it in the void were minimal. The idea for fitting the plank was devised by Mr Ferrara, Mr Hekimian and Inspector Sutcliffe during their discussions on the day of or the day after the incident.
3. These modifications were made from the materials already used on the work platforms in other areas or were otherwise obtained from a hardware store.
4. After each jump, Karimbla and the offender adopted a formal hand over process that was documented. This involved a supervisor from the offender and a Safety Officer from Karimbla walking around each level of the finishing screens to ensure that they were safe for use and signing a document to that effect that was retained by Karimbla. The first jump after the formal handover process was adopted occurred on 26 February 2016.

The offender's case on sentence

1. The offender relied on an Affidavit of Mauro Poletti sworn 4 December 2019. Mr Poletti was present in Court for the sentence hearing, but not required for cross-examination. Mr Poletti's evidence can be summarised as follows.
2. Mr Poletti has 42 years' experience in the construction industry. The offender was incorporated in 1997 and it is a family owned business. The offender employs 9 people full-time and engages about 30 labour hire personnel at any one time.
3. In the last 10 years the offender has suffered about 4 or 5 lost time injuries, with the most serious injury being a broken ankle. The offender has not been involved in a fall from heights incident.
4. The offender has provided a jump form screen system on approximately 25 projects, involving about 5 million man hours of work, including about 350,000 man hours of work at the site.
5. The offender complied with all of SafeWork NSW's requirements during the course of the investigation.
6. The offender has contributed to a number of charities within its 20 years of operation.
7. Mr Poletti on behalf of the offender expressed his regret and sympathy that Mr Posa was injured at the site.
8. The offender continues to operate in the same industry, with a strong focus on safety. The offender has not been the subject of any subsequent investigation by SafeWork NSW.
9. Consideration
10. I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

1. The offence is one of considerable objective gravity.
2. The void through which Mr Posa fell measured approximately 800 mm x 500 mm and presented an obvious risk for persons falling through it from one level to another. The offender, through its supervisor, Mr Ferrara, was aware of the void and should have been aware of the danger that it posed to workers using the top and middle level of the finishing screens.
3. The likelihood of the pleaded risk occurring was moderate to high as a result of the requirement for the concrete column and balcony returns to be rendered and painted, which necessitated the renderers and painters coming within the vicinity of the void on a number of occasions.
4. The practice of the renderers covering the void with a piece of plywood to protect the finished surfaces on the level below, was known to the defendant, and created a further risk that a worker would step on to the temporary piece of plywood which was not intended to hold the weight of a worker.
5. The degree of harm that might eventuate if a person fell through the void was significant and included a risk of death.
6. The offender was aware of the need to minimise the gaps and to comply with the relevant Australian Standard. It was contractually obliged to do so.
7. The offender should have known about the pleaded risk from the time it was given the design drawings for the system by its subcontractor. The presence of the void was indicated on the design drawings which were drawn to scale. In other areas of the design drawings there was a requirement for the offender to manufacture extensions to the work platform as required on site. However, the void was not marked as one of these areas on the design drawings.
8. The offender did not have a formal risk assessment process in place to identify gaps between the work platform and the edges of the building that may pose the hazard of a worker falling between levels.
9. The installation of a permanent plywood extension to the work platform was a reasonably practical measure that could have been implemented using materials that were already available to the offender on site or available from a hardware store. The permanent extension of the work platform was a simple precaution that could have been taken and was within the offender's capacity to design and install. The prevention of falls was the purpose of the offender's contract to supply, maintain and operate the system. The existence of the void was antithetical to the offender's undertaking at the site.
10. An alternate method which would have minimised the risk was the installation of a hinged flap similar to that installed on the bottom level of the finishing screens. The offender also had the power to prevent workers from using the finishing screens if they were in an unsafe condition. The offender could have also ensured that static lines were installed to enable the use of harnesses and fall arrest systems.
11. The fact that Mr Krajisnik's near miss was not reported to highlight the danger posed by the void is a mitigating feature to be taken into account.
12. Mr Posa suffered serious injuries that have caused him significant ongoing disability.
13. I have taken into account the maximum penalty for the offence.
14. Aggravating factors
15. The injury, harm and loss caused by the section 32 offences was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk and the infliction of serious injury to Mr Posa is sufficient to satisfy the aggravating factor.
16. Mitigating Factors
17. The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender was incorporated in 1997 and has throughout the relevant period operated in an industry that often exposes workers to risks to their health and safety.
18. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender took a series of steps after the incident to ensure that it could not be repeated. Those steps were comprehensive and timely.
19. The offender co-operated with the Safe Work investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
20. The offender, through its director, Mr Poletti, has expressed some regret and sympathy towards the circumstances of Mr Posa. This does not amount to the satisfaction of the mitigating factor provided for by section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999, although it is a matter that can be taken into account.
21. The offender limited the issues to be contested at trial. I am satisfied that the offender demonstrated a willingness to facilitate the course of justice and this can be taken into account in mitigation of the penalty imposed.
22. Parity
23. I have had regard to the parity principle: Green v The Queen (2011) 244 CLR 462 at [28]. MJM Painting Services Pty Ltd and Miro Maric were prosecuted in relation to Mr Posa's injury. The plea of guilty entered by MJM indicated that it accepted that it had breached its section 19(1) duty by failing to require Mr Posa to wear a harness in accordance with the instructions given by Karimbla to MJM. The failing of MJM related to its ability to control Mr Posa's work and its obligation to ensure his health and safety.
24. The circumstances of the offender's conviction are not directly comparable. It owed a duty to ensure, in so far as was reasonably practicable, the health and safety of the workers that used the work platforms on the screens to perform their work. The existence of the void posed a danger to persons other than Mr Posa. The purpose of the offender's work at the site was to install and maintain the system to prevent falls from one level to another. The system as supplied by the offender was obviously inadequate to do so. The offender was in a superior position to ensure that Mr Posa and others were not exposed to the risk by provision of an engineering control to eliminate the risk. I am satisfied that there are good reasons to find that the offender has a higher degree of culpability for the offence.

Costs

1. The offender submitted that the quantum of the usual costs order should be ameliorated to take into account the following issues: 1. that the prosecution did not succeed on the section 19(1) of the Act charge; 2. that the prosecutor did not succeed on all the particulars in [10] of the Summons; 3. that the prosecutor did not succeed on its case relating to the horizontal gap; and 4. the costs thrown away by the prosecution engaging an expert and then deciding not to lead any expert evidence at trial.
2. The first three of those matters can be succinctly dealt with.
3. The prosecution brought the section 19(1) charge as an alternative to the section 19(2) charge, on which the prosecution was successful at trial. The correct charge was based on legal argument that did not add significantly to the trial.
4. The prosecution abandoned three sub-particulars of one of the particulars of breach in the Summons, at my invitation during closing submissions. No evidence had been led in respect of those sub-particulars. I am satisfied that no additional Court time was spent in relation to preparing an answer to those sub-particulars. If there were any additional costs incurred as a result of preparing the case in relation to those sub-particulars, I think that they would be very minor and should not be the subject of an adjustment in the usual costs order.
5. The prosecution case was that the horizontal gap being 620 mm, well in excess of the horizontal gap of 300 mm provided for by the Australian Standard, had its origins in the measurements taken by Inspector Sutcliffe. In the principal judgment I came to the conclusion that Inspector Sutcliffe was mistaken in respect of his measurement. Undoubtedly this was a factual issue at trial that was decided in favour of the offender. Whilst it did take some Court time to resolve that matter I do not think that it was unreasonable for the prosecutor to rely on the evidence of Inspector Sutcliffe. There was a lack of evidence of other measurements taken by the various witnesses and accordingly the prosecution was not in a position to judge the reliability of Inspector Sutcliffe's evidence on this point by reference to other independent evidence. I do not think that it is appropriate to adjust the usual costs order in respect of this factual dispute being decided in favour of the offender.
6. This brings me to the expert evidence issue.
7. The incident the subject of the charge occurred on 22 February 2016. The Summons was filed on 20 February 2018, some 2 days before the expiration of the limitation period. The matter was first listed before the Court on [insert date]. The prosecutor was required to serve a brief on or before [insert date].
8. On [insert date] the offender entered a plea of not guilty and the matter was listed for hearing on 18 March 2019 with an estimate of two weeks. On 7 September 2018 the prosecutor was directed to serve any expert report on which it intended to rely on or before 16 November 2018. On 31 October 2018 Douglas Crawford, a scaffolding consultant, was first briefed to provide an expert report by the prosecutor.
9. On 14 November 2018 the solicitor for the prosecutor wrote to the solicitor for the offender requesting an extension of time to serve the expert report of Mr Crawford. This led to an exchange correspondence between the parties.
10. On 26 November 2018 the matter was brought back before the Court and a direction made that the expert report be served by 30 November 2018. Further correspondence was exchanged between the parties.
11. On 10 December 2018 the matter came before the Court and new directions were made requiring the prosecutor to serve its expert's report by 14 December 2018. The expert report was eventually served on 13 December 2018, but ultimately the offender was unable to respond to it by 11 February 2019, when the matter returned before the Court. Ultimately the offender could not obtain an expert report in a time that would have enabled the trial to commence on 18 March 2019. Accordingly, the matter was adjourned for hearing to 12 August 2019, again with an estimate of two weeks.
12. The legal representatives for the offender then sought to obtain an expert report in response to Mr Crawford's report, because they could not know without seeking an advance ruling (which they could have done) if Mr Crawford's evidence would be ruled to be admissible.
13. On 21 August 2019 during the course of the hearing, the prosecutor indicated that it would no longer be calling Mr Crawford to give expert evidence.
14. Mr Hegarty, the solicitor for the offender, swore an affidavit on 3 December 2019 in relation to this issue. Mr Hegarty deposes that the offender incurred additional costs as a result of the efforts to have the prosecutor serve its expert report in accordance with the timetable entered by the Court, the vacation of the hearing dates and the engaging of an expert to prepare a report in response to the prosecution's expert. Mr Hegarty estimated these additional costs to be in the sum of $56,554.88 plus GST. Mr Hegarty's evidence as to the fact that additional costs were incurred was unchallenged.
15. Section 257F Criminal Procedure Act 1986 provides: (1) A court may in any proceedings under this Part, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned. (2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made. (3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings. (4) An order may be made whatever the result of the proceedings.
16. I am satisfied that the hearing of the proceedings were adjourned as a result of the unreasonable conduct or delay of the prosecutor and that caused the offender to incur additional costs, for the reasons that follow.
17. First, the prosecutor was in breach of a number of directions of the Court to serve the expert report. It should have been part of the brief served close to the commencement of the proceedings. The prosecutor then agreed to serve an expert report almost 6 weeks prior to formally retaining the expert to provide the report. The provision of the report was then delayed, probably as a result of the expert's conduct and availability, such that the hearing dates allocated by the Court could not be maintained.
18. Second, the extent to which the report contained expert material is highly questionable. There was some material about the applicable Australian Standard, but that material was admissible without the expert referring to it. The bulk of the expert report was the collation of other factual evidence to conclude that the measurement of 620mm of the horizontal gap exceeded the permissible 300mm horizontal gap provided for by the Australian Standard. The main conclusions of the report did not amount to expert evidence, because they rose no higher than the application of common sense to the facts alleged by the prosecutor.
19. Third, the prosecutor should have made the decision not to rely on the report much earlier than at the conclusion of its evidence at the hearing. In my view, it should have been apparent on receipt of the report that its prospective usefulness was very limited and it was obvious that reliance on Mr Crawford's report would lead to additional and unnecessary costs.
20. Fourth, I accept the evidence of Mr Hegarty. The additional costs incurred by the offender included the retention of its expert in response. I am satisfied that it was reasonable for the offender to retain its own expert in response to Mr Crawford's report.
21. Whilst Mr Hegarty gave an estimate of the additional costs, I have not been asked to decide if the quantum of those costs is reasonable. Accordingly, I will make a general order that can be dealt determined in accordance with the procedure provided for in section 257G Criminal Procedure Act 1986.

Penalty

1. The offender is convicted.
2. I impose a fine of $300,000.
3. I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
4. The offender is to pay the prosecution's costs of the proceedings.
5. The prosecutor is to pay the offender's costs thrown away by the late service of the prosecutor's expert report, the vacation of the hearing of 12 March 2019 and the preparation of the defendant's expert report.

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: 05 February 2020