SafeWork NSW v Rahme Civil Pty Ltd

1. The Court has the power to proceed to determine the matter in the absence of the defendants pursuant to section 250 of the Criminal Procedure Act 1986 ('CPA Act').

The defendant's duties

1. Rahme Civil had a duty under section 19(1) of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers, including Mr Maatouk and Mr Rokoivaulevu, while they were at work in the company's business or undertaking at the site.
2. Mr Rahme had a duty under section 27(1) of the WHS Act to exercise due diligence to ensure that the company complied with its duty under section 19(1) of the WHS Act.
3. Rahme Civil had a duty under section 19(2) of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of other persons, is not put at risk from work carried out as part of the conduct of the defendant's business or undertaking.
4. Mr Rahme had a duty under section 27(1) of the WHS Act to exercise due diligence to ensure that the company complied with its duty under section 19(2) of the WHS Act.

The risk

1. There was a risk to workers and other persons suffering fatal or serious injuries as a result of being struck or trapped by collapsing masonry brick walls during excavation and demolition works at the site.

THE ELEMENTS OF THE OFFENCE

1. The facts alleged by the prosecutor are set out in detail in the Statement of Facts ('SOF') and the prosecution submits that the SOF is supported by the evidence in the three folders of the Prosecution's Tender Bundle (exhibit A).
2. In relation to an offence contrary to section 32 of the WHS Act, the prosecution must prove beyond reasonable doubt that the defendants breached their duties as outlined in section 19 of the WHS Act, and must prove the elements of the offence as follows: 1. That the defendant was a person conducting a business or undertaking and therefore was required to comply with a health and safety duty; 2. That the defendant failed to ensure, so far as was reasonably practicable, health and safety; 3. That the risk(s) to health and safety to workers were at work in the business or undertaking; and 4. That the failure to ensure health and safety exposed a worker or workers at work to a risk of death, or serious injury, or serious illness.

FACTUAL BACKGROUND

1. The premises of the work being conducted by Scopeview Projects Pty Ltd ('Scopeview') were at the site. The address is located on a suburban street, surrounded by residential properties. The site is on the South facing side of the street.
2. In or around June 2020, Scopeview was employed as the principal contractor at the site to undertake extensive renovations to existing walls on the property.
3. In or about September 2020, Rahme Civil was engaged by Scopeview to carry out the partial demolition of the existing residential dwelling at the site and associated excavation works, as part of extensive alterations and additions to the existing residential dwelling at the site.
4. Rahme Civil was contracted by Scopeview on an hourly basis to conduct works, however there was no written contract between the company and Scopeview in relation to the work.
5. At approximately 7:50am on 14 December 2020 a semi constructed wall ('the Wall') fell on Mr Maatouk aged 23 years. He was employed on the site as a leading hand by Rahme Civil for approximately three years at the time of the incident ('the Incident').
6. On 14 December 2020, Mr Raymond Tayoun ('Mr Tayoun') had instructed Mr Maatouk and Mr Rokoivaulevu to clean the sand from a trench that had been excavated to allow footing to be constructed for new wall sections, in the vicinity of the Wall.
7. In accordance with the direction of Mr Tayoun, Mr Rokoivaulevu started digging the front of the footpath next to a skip bin. Mr Maatouk was standing near a section of the Wall.
8. Shortly after the direction from Mr Tayoun, and while Mr Maatouk was speaking with a neighbour, Mr Maatouk heard a crack and saw the Wall begin to tilt towards him. Mr Maatouk took a couple of steps backward, turned around, and attempted to move out of the way of the collapsing Wall.
9. Mr Maatouk was struck by the Wall and landed on a protruding metal screw piling, which penetrated his body, causing serious injuries.
10. Mr Maatouk sustained a laceration to the rear of his head requiring 13 staples; penetration of the chest wall and left armpit by the large protruding screw piling requiring surgical repair; and severe bruising to his torso, arms and right shoulder.
11. Mr Maatouk's injuries were a result of the masonry brick Wall collapsing and falling on top of him, and him falling on the large protruding screw piling, as a direct result of the Wall's impact.
12. Mr Tayoun performed first aid on Mr Maatouk after the incident, until an ambulance arrived at the site approximately 5 minutes later. Mr Maatouk was then taken to St Vincent's Hospital.
13. On 14 December 2022 between 10:05am and 11:45am Safework Inspector Michael Holder visited the site in response to an incident notification concerning a reported wall collapse.
14. At the time of the incident, Mr Maatouk recalls wearing safety boots and Hi-Viz clothing, as well as potentially a hard hat as personal protective equipment.
15. There was no bracing supporting the Wall. Mr Maatouk had also not seen a Safe Work Method Statement ('SWMS') for that day.

The Wall

1. Rahme Civil was involved on the site as the digging contractors. As a result, they were doing 'the dig' around the existing walls which were being kept during the renovation, requiring them to have their machinery and trucks onsite.
2. On Friday 11 December 2020, a 1.5-tonner excavator operated by Rahme Civil employees, was being used to dig under the base of the wall which subsequently collapsed.
3. Mr Maatouk later recalled the operators of the excavator admitted to digging too low underneath the sandstone base of the Wall, and that each sandstone footing was only about 1.5 meters wide, as opposed to a continuous block which would have supported the Wall.
4. Mr Maatouk said that he had never noticed a structural engineer completing an assessment of the stability of the old brick walls until after a prior incident ('30 October collapse').

30 October collapse

1. On 30 October 2020, Scopeview notified SafeWork NSW of an incident where a masonry brick wall at the site partially collapsed onto a neighbouring property.
2. The 30 October collapse resulted in bricks from the collapsed wall entering the neighbour's property through a window, causing damage that required repair.
3. Photographs taken of the 30 October collapse demonstrated sub-optimal shoring at the incident location and undermining of the retained structures and foundations.
4. The wall that collapsed was not braced at the time that it collapsed. On 30 October 2020, SafeWork NSW Inspector, Michael Holder issued Prohibition Notice 7-131-VKLRWK to Scopeview. This Notice included directions as to measures to be taken to ensure the health and safety of workers/other persons.
5. In response to this Notice, Scopeview engaged SDS Engineering to assess the structural integrity of the wall that had partially collapsed.
6. SDS Engineering attended the site on 30 October 2020 and assessed only the wall which had partially collapsed at that time.
7. A report was prepared by SDS Engineering, which stated that it had been assumed the failure could be mainly attributed to impact loading during demolition and/or inadequate propping and lateral support of the masonry wall, and that the wall did not currently meet robustness criteria with respect to wind-loading.
8. After the 30 October collapse, neither Scopeview nor Rahme Civil engaged a competent person, such as a structural engineer, to assess the structural stability of other remaining walls and foundations at the site and provide advice as to management of the hazards and risks of unplanned structural collapse of masonry brick walls at the site. Nor did either take steps to brace/prop all the remaining walls at the site, that were unstable due to their age or condition, or did not have internal perpendicular walls providing lateral support or a floor/roof/ceiling above providing structural support.

1 December collapse

1. In or about late November 2020, Mr Rokoivaulevu observed another existing masonry brick wall moving. Mr Maatouk raised concerns with Mr Rokoivaulevu about the wall moving.
2. On 1 December 2020, Mr Maatouk was walking down a set of temporary stairs adjacent to part of a masonry brick wall at the site. As he went down the stairs part of the masonry brick wall adjacent to a stairway collapsed ('1 December collapse'). This was the same wall that Mr Rokoivaulevu had observed moving in late November 2020.
3. This unplanned structural collapse of that masonry brick wall was not notified to SafeWork NSW.
4. After the 1 December collapse, neither Scopeview nor the defendant installed bracing or propping to the wall that partially collapsed on 1 December.

Workplace Safety Systems

1. Mr Maatouk said he only attended one toolbox talk at the site, which occurred following the 30 October collapse.
2. Mr Maatouk said that following this talk he still had a number of concerns as to the safety on the site. In particular, he found the mortar in the old brick walls was often unsteady and that he had raised this issue at the beginning of the year, however nothing was done about this.
3. There were no records kept by the company or Scopeview to demonstrate what information was discussed during toolbox talks, or the frequency of same, and the evidence suggests that toolbox talks did not occur on a regular basis, and that concerns were not raised, except on one occasion after the 30 October collapse.
4. Mr Maatouk said he had been reprimanded by his supervisors for removing other old walls on the site which he thought were unsafe.
5. Mr Maatouk was not inducted before any work commenced on the site nor does he have any knowledge of Scopeview having an induction program.
6. Mr Maatouk had not been provided with any safety training since he first commenced at Scopeview.
7. Mr Maatouk stated that there had been multiple complaints made to Mr Cameron Douehi ('Mr Douehi'), the director of Scopeview, from 'every person in that street' regarding the safety of the site and potential damage to their own properties.
8. The evidence demonstrates that neither Rahme Civil nor Scopeview had developed documented safe work methods for the excavation and demolition processes prior to the commencement of any demolition and excavation works at the site.

Rahme Civil was a duty holder

1. I am satisfied to the requisite standard that, at all material times, Rahme Civil was relevantly a person conducting a business or undertaking for the purposes of section 5 of the WHS Act.
2. Rahme Civil was a registered corporation (exhibit A Vol 1, Tab 1) and conducted a business or undertaking that involved asbestos removal, demolition and excavation work in civil engineering and residential construction projects in the Sydney metropolitan region (exhibit A Vol 2, Tab 47).
3. Scopeview conducted a business or undertaking that involved construction of residential homes and commercial building projects in the Sydney metropolitan region.
4. Rahme Civil commenced to undertake demolition and excavation works from in or about mid- September 2020 at the site.
5. At all material times, Rahme Civil had management and control of the demolition and excavation works at the site.

Rabih Rahme was a duty holder

1. I am satisfied to the requisite standard that, at all material times, Rabih Rahme was relevantly an officer of Rahme Civil, and had a duty pursuant to section 27(1) of the WHS Act.
2. At all material times, Mr Rahme was: 1. the sole director of Rahme Civil; (exhibit A, Vol 1 Tab 2); 2. was a working director; 3. the Senior Company Manager and Staff Supervisor for Rahme Civil in respect to works it conducted at the Site; (exhibit A Vol 1, Tab 27); and 4. was responsible for managing all aspects of the business including building and construction works, work health and safety, financial expenditure, and administration (exhibit A Vol 1, Tab 27).
3. The responsibility for Rahme Civil completing its activities at the site was placed on Mr Rahme, as an executive officer of Rahme Civil (exhibit A, Vol 1 Tab 27). In this role Mr Rahme was responsible for the project, including in respect to: 1. the conduct of inspections of the workplace to ensure the observance of health and safety procedures; 2. assisting with the development of safe work method statements; 3. ensuring that risk management procedures were followed and safe work method statements were produced for all nominated activities; 4. ensuring that all activities were risk managed, planned and where required have safe work method statements developed; 5. when identifying by a risk assessment, ensuring specific work method statements are prepared.
4. Mr Rahme attended the site regularly and was involved in regular verbal communication with Rahme Civil workers (exhibit V).

Rahme Civil workers

1. Rahme Civil engaged Milad Diab ('Mr Diab') as a Plant Operator to undertake excavation works at the site (exhibit A, Vol 1 tab 27).

Other Persons at the Site

1. I accept that other persons were engaged and performed work at the site, but were not workers engaged, or caused to be engaged by Rahme Civil, or workers whose activities in carrying out work were influenced or directed by Rahme Civil, while at the site.
2. In particular I find that Mr Maatouk (exhibit A, Vol 1 Tab 22) and Mr Rokoivaulevu (exhibit A, Vol 1 Tab 23) were engaged by Scopeview as labourers to undertake work at the site, and were relevantly 'other persons' to whom Rahme Civil owed a duty pursuant to section 19(2) of the WHS Act.
3. At all material times, Mr Douehi was: 1. the sole director of Scopeview; 2. a working director; 3. a member of Housing Industry Australia and the Master Builders Association; and 4. responsible for managing all aspects of the business, including building and constructions works, work health and safety, financial expenditure, and administration.
4. At all material times, Mr Tayoun was: 1. engaged by Scopeview as the Project Manager for the construction project at the site; and 2. responsible for managing day-to-day operations at the site, including building and construction works, and work health and safety.

The extent of Rahme Civil's duty

1. The extent of Rahme Civil's duty involves a consideration of the reach of the statutory expression 'that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking', as appears in section 19(2) of the WHS Act. Section 19(3) notes that in relation to the section 19(2) duty it includes that a person conducting a business undertaking must ensure, so far as is reasonably practicable, the provision and maintenance of a work environment without risks to health and safety, as well as the provision and maintenance of safe systems of work.
2. It is also relevant to have regard to the provisions of section 16 of the WHS Act which provide that more than one person can concurrently have the same duty, and that each duty holder must comply with that duty to the standard required by the WHS Act even if another duty holder has the same duty. In this matter it is evident that Scopeview also had a health and safety duty (pursuant to section 19(1) of the WHS Act to ensure that the health and safety of workers at the site, including Mr Maatouk and Mr Rokoivaulevu, were not put a risk.
3. However, as is noted by section 16(3) of the WHS Act, if more than one person has a duty for the same matter, each person retains responsibility for the person's duty in relation to the matter, and must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. Therefore, Rahme Civil and Scopeview had concurrent duties in relation to the safety of the demolition and excavation works being undertaken at the site.
4. I am satisfied to the requisite standard that Rahme Civil's duty extended to ensuring the health and safety of other persons, in particular Mr Maatouk and Mr Rokoivaulevu, were not put a risk on 14 December 2020 from work carried out by Rahme Civil as part of its demolition and excavation works at the site in the period from mid-September 2020.

The extent of Rabih Rahme's duty

1. I am satisfied to the requisite standard that Mr Rahme's duty extended to exercising due diligence to ensure that Rahme Civil complied with its duty to ensure the health and safety of other persons, in particular Mr Maatouk and Mr Rokoivaulevu, were not put at risk on 14 December 2020 from work carried out by Rahme Civil as part of its conduct of its demolition and excavation works at the site in the period from mid-September 2020.

The health and safety of other persons was put at risk from work carried out as part of the works undertaken by Rahme Civil

1. For the reasons set out below, I am satisfied that Rahme Civil failed to comply with its duty under section 19(2) and that as a result the health and safety of other persons, in particular Mr Maatouk and Mr Rokoivaulevu, was put at risk on 14 December 2020 from work carried out by Rahme Civil as part of its conduct of its demolition and excavation works at the site in the period from mid-September 2020.

The Risk

1. Relevantly, 'risk' as pursuant to the duty in section 19(2) of the WHS Act, 'refers to the possibility of danger' not the actual occurrence of danger (see Thiess Pty Ltd v Industrial Court of NSW (2010) 78 NSWLR 94; [2010] NSWCA 252 at [67] (Spigelman CJ; Beazley JA and Basten JA agreeing).
2. There is no requirement that the risk has in fact manifested, nor that another person has suffered actual injury or illness (see Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 at [21]-[22] (Simpson JA).
3. As I have noted previously, an incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error. (see Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015).
4. The pleaded risk in relation to Rahme Civil and Mr Rahme is the risk to other persons of suffering fatal or serious injuries as a result of being struck or trapped by collapsing masonry brick walls during excavation and demolition works at the site (Rahme Civil Summons - Annexure A at [9], and Mr Rahme Summons - Annexure A at [11]).
5. The pleaded risk arose from the existence of a hazard that manifested through unbraced, unstable masonry brick walls at the site that were created by demolition and excavation works undertaken by Rahme Civil, and persons undertaking work in the vicinity of those walls, including excavating, demolishing and cleaning of footings directly near the walls.
6. In particular, the hazard was created by the circumstances where the masonry brick walls were not braced and were therefore unstable and the foundations were undermined due to factors including excavation and demolition works, and weather events (i.e. wind, rain).

Adequate risk assessment of all masonry brick walls at the site - [10 (a)]

1. I find that Rahme Civil failed to undertake, or verify that the principal contractor, Scopeview, had undertaken an adequate risk assessment of all masonry brick walls at the site, and that it was reasonably practicable for it to do so.
2. In particular, Rahme Civil did not undertake a risk assessment which included: 1. consideration of the excavation and demolition plan for the works; 2. any engineering or technical advice in respect to the structural stability of the walls; 3. identification of hazards caused by the interface between unbraced, unstable walls during demolition and excavation, and persons at the site; and 4. the development and implementation of adequate control measures for the identified hazards.
3. This failure is established by the absence, at the commencement of the demolition and excavation works, of any documented risk management process being undertaken on the part of Rahme Civil in respect to its works at the site.
4. Further, I am satisfied that the evidence demonstrates that no Site Control Plan, risk assessment documents or SWMS, were prepared by Rahme Civil at the commencement of the demolition and excavation works at the site.
5. Similarly, the evidence demonstrates that Scopeview also failed to undertake a documented risk management process in respect to the works at the site, including the demolition and excavation works to be undertaken by Rahme Civil.
6. As noted above the Scopeview WHS Management Plan was only prepared in November 2020 (after the 30 October collapse), and it was not provided to Rahme Civil (exhibit A, Vol 2 Tab 27).
7. It is evident that despite the contents of the Site Control Plan requiring Rahme Civil to undertake a two stage Risk Management process on site, including the development of a project specific risk register, and the development of project specific and SWMS that neither of these steps were taken generally, or specifically in relation to the hazards and risks associated with the demolition and excavation works involving the masonry brick walls that were to be left insitu at the site.
8. In particular, the 'Risk Management Register' does not include any identified risks, and in particular did not include the identification of hazards caused by the interface between unbraced, unstable walls during demolition and excavation, and persons at the site.
9. Nor do the sections of the Site Control Plan relating to: 1. 'Workplace Inspections'; 2. Hazard Reporting; and 3. Safety Inspections contain any site specific contents, and in particular did not include the identification of hazards caused by the interface between unbraced, unstable walls during demolition and excavation, and persons at the site.
10. I am satisfied that the evidence discloses that Rahme Civil took no steps to inform itself of the hazards associated with the design and structure of the existing dwelling prior to commencing demolition and excavation work (exhibit A, Vol 3 Tab 53).
11. There was no documentation provided to Rahme Civil by Scopeview relating to hazards associated with the design and structure of the existing dwelling prior to demolition work commencing (exhibit A, Vol 3 Tab 53).
12. Rahme Civil was not provided with copies of the construction drawings and other building information prior to demolition work commencing (exhibit A, Vol 3 Tab 53). No information was provided to Rahme Civil by Scopeview in respect to the age, condition and structural stability of walls at the site prior to demolition and excavation work commencing. Nor was any information provided to Rahme Civil regarding demolition and excavation works and the risk of structural collapse of parts of the existing premises.
13. Prior to demolition and excavation work commencing, Rahme Civil did not request that Scopeview engage a structural engineer to conduct an investigation of the site. Rahme Civil assumed the structural design was done at the design stage, and did not get involved in designs from engineers.
14. No instructions were provided by Scopeview to Rahme Civil regarding a requirement to stabilise brick walls or how they were to be supported after the roof and other supporting structural elements of the existing dwelling were removed. Rahme Civil had no control measures in place to prevent the remaining masonry brick walls collapsing after the roof and ceilings were stripped from the existing dwelling.
15. No ground condition reports, or dilapidation reports were provided to Rahme Civil by Scopeview prior to demolition and excavation work commencing.
16. I am satisfied that it was reasonably practicable for Rahme Civil to undertake, or verify that Scopeview had undertaken, an adequate risk assessment of all masonry brick walls at the site, in particular after the demolition of the remainder of the dwelling. Indeed, such steps were required as part of its Site Control Plan.
17. That this was reasonably practicable for Rahme Civil to do, and it is also apparent from the 'Safe Work Method Statement - Demolition' that is contained in the Site Control Plan. Under the 'Job Step' - 'Protection of the public and site personnel 2' the hazard of 'large falling debris or partial collapse causing serious injury to persons' is identified and a series of control measures is identified.
18. Under the 'Job Step' - 'Protection of the public and site personnel 3', the hazard of 'Collapse of façade to be retained causing serious injury to persons' is identified and a series of control measures are identified, including: 1. Ensure sufficient planning by engineers and or other responsible persons; 2. Ensure planning allows for adverse weather (high winds); 3. Ensure façade foundations are not undermined; 4. Ensure façade supporting structure is not struck by plant; 5. Ensure no unauthorised persons wander into work area; and 6. Ensure adequate separation and or protection of work and public areas on the building perimeter and within the building if it is in use.
19. Under the 'Job Step' - 'Structure demolition techniques 5' the hazard of 'Walls destabilized causing collapse of wall or part of the wall onto person/s' is identified and a series of control measures are identified, including: 1. Ensure site inspection and detailed Work Method Statement carried out; 2. Obtain engineering approval for demolition sequence and follow same; 3. Ensure public areas (street or walkway closed if there is a risk of collapse); 4. Ensure demolition is started at top of wall; 5. Ensure operator is trained and understands the specific demolition sequence; 6. Ensure stray debris / loose bricks are controlled; 7. Ensure changes in wall structure (ducts are identified and compensation made); and 8. Ensure care is taken to ensure the building being demolished is true to plans or adjustment must be made to the demolition sequence.
20. With the knowledge of the 30 October collapse and the specific hazard raising concern about the structural integrity of the masonry brick walls, Rahme Civil should have required the other walls to be assessed, or request that Scopeview arrange this, including an engineering risk assessment, in relation to their structural stability and integrity.
21. I find that it was reasonably practicable for Rahme Civil to undertake, or verify that Scopeview had undertaken, an adequate risk assessment of all masonry brick walls at the site, and in failing to do so, it failed to comply with its duty pursuant to section 19(2) of the WHS Act.
22. There is no evidence to support a finding that the costs of doing so, would be disproportionate to risk. I find that the failure to take this measure was a significant or substantial cause of Mr Maatouk and Mr Rokoivaulevu being exposed to the pleaded risk.
23. The authorities make it clear that the relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather, whether there was a causal relationship between the act or omission and the risk to which a worker was exposed.
24. In this matter it is apparent that the tasks of demolishing part of the existing dwelling and excavating in and around the remaining masonry brick walls gave rise to a risk of those brick walls collapsing and striking or trapping other persons who were undertaking activities at the site. It can be inferred that if either Rahme Civil or Scopeview had undertaken an adequate risk assessment, it would have identified the hazards and the risk, and that measures, such as those identified in the SDS Report and the Nitma Consulting Dilapidation Reports would have been implemented, which would have minimised the pleaded risk.
25. I find that Rahme Civil failed to undertake, or verify that the principal contractor, Scopeview had undertaken, an adequate risk assessment of all masonry brick walls at the site, and that it was reasonably practicable for it to do so, and that its failure to take this measure was a significant or substantial cause of Mr Maatouk and Mr Rokoivaulevu being exposed to the pleaded risk, and as a result Rahme Civil has committed a Category 2 offence pursuant to section 32 of the WHS Act.

Engaging a Geotechnical Engineer for the Site - [10 (b)]

1. I find that Rahme Civil failed to engage, or verify that Scopeview had engaged, a geotechnical engineer to undertake an assessment of the soil and groundwater conditions at the site, and provide advice and recommendations on how identified hazards and risks should be managed prior to the commencement of any demolition and excavation works at the site.
2. The evidence demonstrates that neither Scopeview nor Rahme Civil engaged a geotechnical engineer prior to the commencement of any demolition and excavation works at the site to undertake an assessment of the soil and groundwater conditions at the site.
3. This was a reasonably practicable step. It would have been a simple matter for Rahme Civil to enquire of Scopeview as to whether they had engaged, a geotechnical engineer to undertake an assessment of the soil and groundwater conditions at the site. If Scopeview had not done so, then it would have been a simple matter for Rahme Civil to themselves engage a geotechnical engineer.
4. That such a measure could be easily undertaken is demonstrated by the step that Scopeview took in respect to the project undertaken by it and Rahme Civil at the site, to engage Martens & Associates to prepare a Geotechnical Assessment.
5. There is no evidence to support a finding that the costs of doing so, would be disproportionate to risk.
6. I find that the failure to take this measure was a significant or substantial cause of Mr Maatouk and Mr Rokoivaulevu being exposed to the pleaded risk.
7. On the site it is apparent that the soil conditions generally, and specifically, in and around the remaining masonry brick walls were poor, and gave rise to a hazard that the foundations and footings could be undermined and affect the strength and stability of the existing footing. Further, that the excavation for construction of footings for the new walls could lead to the undermining of the existing footings. It is evident that these factors would have been identified by geotechnical engineering report.
8. I infer that if either Rahme Civil or Scopeview obtained a geotechnical engineering report it would have identified the hazards and the risk, and that measures would have been recommended to address the hazard and the risk, such as those identified in the geotechnical report - including inspecting the exposed material at the foundations of the existing walls to verify that they were adequate to support the structures, and the installation of adequate shoring or retaining equipment and additional support to reinforce the foundations.
9. I infer that if those measures had been undertaken by Scopeview and/or Rahme Civil, in compliance with the recommendations of a geotechnical engineering report, this would have minimised the risk of the collapse of the Wall.
10. I find that Rahme Civil failed to engage, or verify that Scopeview had engaged, a geotechnical engineer to undertake an assessment of the soil and groundwater conditions at the site, and provide advice and recommendations on how identified hazards and risks should be managed prior to the commencement of any demolition and excavation works at the site, and that it was reasonably practicable for it to do so, and that its failure to take this measure was a significant or substantial cause of Mr Maatouk and Mr Rokoivaulevu being exposed to the pleaded risk, and as a result Rahme Civil has committed a Category 2 offence pursuant to section 32 of the WHS Act.

Engaging a Structural Engineer for the Site - [10 (c)]

1. I find that Rahme Civil failed to engage, or verify that Scopeview had engaged, a structural engineer to undertake an assessment of all existing masonry brick walls and foundations at the site and provide advice and recommendations on how identified hazards and risks should be managed prior to the commencement of any demolition or excavation works at the site.
2. I am satisfied that the evidence demonstrates that neither Scopeview nor Rahme Civil engaged a structural engineer prior to the commencement of any demolition and excavation works at the site to undertake an assessment of all existing masonry brick walls and foundations at the site (see exhibit A, Vol 3 Tab 53, p. 6; exhibit A, Vol 2 Tab 47, p.16).
3. Scopeview only engaged SDS Engineering after the 30 October collapse. However, critically, SDS Engineering were only engaged to assess the western ground floor external cavity brick wall that had been the subject of the 30 October collapse.
4. SDS Engineering were not requested to assess the other remaining masonry brick walls at the site, and did not do so.
5. Despite the findings of the SDS Engineering report, (exhibit A, Vol 2 Tab 37) in respect to the involvement of impact loading during demolition and/or inadequate propping and lateral support of the masonry wall being identified as factors contributing to the failure of the wall in the 30 October collapse, and identification of the risk of further collapse or structural instability from wind loading and/or impact, no steps were taken by Rahme Civil or Scopeview to have SDS Engineering (or another structural engineer) assess the other remaining walls. This is significant because it is apparent that the same factors that caused the 30 October collapse, and gave rise to the ongoing risk, were equally applicable to the other walls at the site, including the Wall.
6. With the knowledge of the hazards and risk associated with the structural stability of the remaining walls post the 30 October collapse, Rahme Civil should have engaged an engineer to assess the other walls at the site prior to continuing demolition and excavation work.
7. In my view it is reasonable to infer that if either Rahme Civil or Scopeview had obtained a structural engineering report it would have identified the hazards and the risk in relation to the other existing walls at the site, and that measures would have been recommended to address the hazard and the risk, such as those identified in the SDS Engineering Report - including lateral support for the Wall involving diagonal propping being provided to the sections of the Wall, as well as propping and support being installed to the foundations, and the installation of adequate shoring or retaining equipment and additional support to reinforce the foundations. Further, that such propping and support be maintained in place until the new walls that would provide lateral support were constructed and had been tied into the Wall, and the proposed timber floor also constructed.
8. I infer that if those measures had been undertaken by Scopeview and/or Rahme Civil, in compliance with the recommendations of a structural engineering report, this would have minimised the risk of the collapse of the Wall.
9. I find that Rahme Civil failed to engage, or verify that Scopeview had engaged, a structural engineer to undertake an assessment of all existing masonry brick walls and foundations at the site and provide advice and recommendations on how identified hazards and risks should be managed prior to the commencement of any demolition or excavation works at the site, and that it was reasonably practicable for it to do so, and that its failure to take this measure was a significant or substantial cause of Mr Maatouk and Mr Rokoivaulevu being exposed to the pleaded risk, and as a result Rahme Civil has committed a Category 2 offence pursuant to section 32 of the WHS Act.

Adequate Safe Work Methods for excavation and demolition processes - [10 (d)]

1. I find that Rahme Civil failed to develop, implement and enforce, or verify that Scopeview had developed, implemented and enforced, adequate safe work methods for excavation and demolition processes that specified control measures for the safe management of existing masonry brick walls at the site.
2. The evidence demonstrates that neither Rahme Civil nor Scopeview had developed documented safe work methods for the excavation and demolition processes prior to the commencement of any demolition and excavation works at the site.
3. Rahme Civil was a contractor experienced in excavation and demolition works.
4. Further, to the extent that the Rahme Civil Site Control plan included a 'Safe Work Method Statement - Demolition', it is apparent that it did not adequately address the hazards and risks specific to the existing masonry brick walls at the site, and did not specifically address control measures required to be implemented for the safe management of existing masonry brick walls at the site.
5. Similarly, the Rahme Civil 'Safe Work Method Statement - Excavation' was not site-specific and did not adequately (if at all) address the hazards and risks specific to the existing masonry brick walls at the site, and did not specifically address control measures required to be implemented for the safe management of existing masonry brick walls at the site.
6. Further, the Scopeview WHS Management Plan did not address the hazards and risks specific to the existing masonry brick walls at the site, and did not specifically address control measures required to be implemented for the safe management of existing masonry brick walls at the site.
7. In particular, neither Rahme Civil nor Scopeview, had documented systems or undocumented systems which: 1. included a requirement to conduct a risk assessment of the weather (i.e. wind, rain), excavation, demolition and worksite wall stability; 2. included a requirement to regularly inspect and document the condition and stability of the brick walls, foundations, and excavations to identify hazards and manage risks; 3. dealt with the hazards and controls relating to the interface of unbraced, unstable walls during worksite demolition and excavation, and persons at the worksite, including during inclement weather (including wind and rain); and 4. dealt with the hazards and controls relating to worksite demolition and excavation, and persons at the worksite.
8. It is also evident from the circumstances of the 30 October collapse and the 1 December collapse, the observations made by workers of cracking to other walls at the site, and the evidence of the Rahme Civil excavator impacting existing walls during the excavation process, that Rahme Civil did not implement and enforce adequate safe work methods for the excavation and demolition processes at the site.
9. Further, the circumstances in which the collapse of the Wall on 14 December 2020 occurred, as identified in the Nitma Reports and patently apparent from the photographs of the Incident site, Rahme Civil had failed to implement adequate safe work methods for the demolition and excavation works at the site. It is apparent that Rahme Civil's methods of work contributed to the failure of the footing under the Wall through both damage to the sandstone blocks from impact from the excavator, and through the undermining of the sand under the concrete floor beneath the Wall.
10. Additionally, there is evidence that remaining walls had cracks at various locations, many of which appeared to have been induced recently, probably as a result of the demolition work, and showed signs of damage to the wall structures, causing the strength and integrity of the walls to have been compromised. There is evidence that indicates that damage to the Wall structure may have also been caused by the Rahme Civil excavator operator impacting the Wall structure in the days prior to the Incident.
11. It was reasonably practicable for Rahme Civil to have implemented and complied with a safe system of work in relation to adequate assessment and inspection of the site (including the stability of walls, foundations and excavation site), temporary bracing of the walls, temporary shoring methods, and the establishment of exclusion zones when walls became unstable (for example, when the ceiling, roof and adjoining walls were removed/demolished, when the excavation or demolition compromised the wall stability, or during inclement weather such as rain or wind events).
12. I conclude that neither Rahme Civil nor Scopeview had comprehensive documented systems which: 1. included a requirement to conduct an adequate, documented risk assessment of the excavation, demolition and site building structure prior to works commencing (with exception to the Safe Work Method Statement - Demolition, which touched on this safety matter but was not comprehensive); and 2. included a requirement to regularly inspect and document the condition and stability of the brick walls, foundations, and excavations to identify hazards and manage risks.
13. I find that it was reasonably practicable for Rahme Civil to develop, implement and enforce, or verify that Scopeview had developed, implemented and enforced, adequate safe work methods for excavation and demolition processes that specified control measures for the safe management of existing masonry brick walls at the site.
14. I am satisfied that this failure was a significant or substantial cause of the risk arising on the date of the Incident.
15. I infer that if adequate safe work methods for excavation and demolition processes that specified control measures for the safe management of existing masonry brick walls at the site had been developed, implemented and enforced by Rahme Civil this would have minimised the risk of the collapse of the Wall.
16. I find that Rahme Civil failed to develop, implement and enforce, or verify that Scopeview had developed, implemented and enforced, adequate safe work methods for excavation and demolition processes that specified control measures for the safe management of existing masonry brick walls at the site, and that it was reasonably practicable for it to do so, and that its failure to take this measure was a significant or substantial cause of Mr Maatouk and Mr Rokoivaulevu being exposed to the pleaded risk, and as a result Rahme Civil has committed a Category 2 offence pursuant to section 32 of the WHS Act.

System for the timely exchange of essential information - [10 (e)]

1. I find that Rahme Civil failed to develop, implement and enforce a system for the timely exchange of essential information between it, Scopeview and workers/other persons at the site as to the hazards and risks associated with demolition and excavation works on the safe management of existing masonry brick walls at the site.
2. In his section 155 response (exhibit A, Vol 2 Tab 47), Mr Douehi acknowledged that the Scopeview Health and Safety Management Plan ('HSMP') was not available at the worksite prior to the 30 October collapse, and was kept at the site from 3 November 2020. However, there is no evidence to demonstrate its use prior to the Incident.
3. Scopeview also acknowledged that most communications were verbal and that the checks and inspections were visual and undocumented (exhibit A, Vol 2 Tab 47). It would have been important to share such essential information with workers and Rahme Civil, including SWMS, hazard reporting, incident management and incident investigation reporting (which should have been completed post 30 October Collapse) as outlined in the HSMP, to identify hazards and manage risks.
4. There is little, if any, evidence to indicate that concerns raised regarding the structural integrity of walls at the site, or associated risks during excavation and demolition, were communicated between Scopeview and Rahme Civil.
5. There were no records kept by Rahme Civil or Scopeview to demonstrate what information was discussed during toolbox talks, or the frequency of same, and the evidence of the workers suggests that toolbox talks did not occur on a regular basis, and that concerns of that nature were not raised, except on one occasion after the 30 October Collapse. It would have also been important to share essential information of concerns raised regarding the structural stability and condition of the walls at the site, or associated risks during excavation and demolition, with workers and Rahme Civil to identify these hazards and manage risks.
6. I am also satisfied that this failure was a significant or substantial cause of the risk arising on the date of the Incident.
7. I infer that if a system for the timely exchange of essential information between Rahme Civil, Scopeview and workers/other persons at the site as to the hazards and risks associated with demolition and excavation works and the safe management of existing masonry brick walls at the site was implemented and enforced, this would have minimised the risk of the collapse of the Wall.
8. I find that Rahme Civil failed to develop, implement and enforce a system for the timely exchange of essential information between it, Scopeview and workers/other persons at the site as to the hazards and risks associated with demolition and excavation works on the safe management of existing masonry brick walls at the site, and that it was reasonably practicable for it to do so, and that its failure to take this measure was a significant or substantial cause of Mr Maatouk and Mr Rokoivaulevu being exposed to the pleaded risk, and as a result Rahme Civil has committed a Category 2 offence pursuant to section 32 of the WHS Act.

Conclusion in relation to Rahme Civil

1. I find that the prosecutor has established to the requisite standard each of the elements of an offence in respect to a contravention of section 32 of the WHS Act, in relation to a failure by Rahme Civil to comply with its s 19(2) duty in respect to Mr Maatouk and Mr Rokoivaulevu on 14 December 2020. Rahme Civil is convicted.

Rabih Rahme failed to comply with his duty pursuant to s 27(1) of the WHS Act

1. I find that Mr Rahme failed to take one or more of the reasonable steps pleaded in paragraph 13 (a) - (d) of Annexure A to the Summons, to ensure that Rahme Civil complied with its duties and obligations under section 19(2) of the WHS Act.

Failure to take the Pleaded Measures

1. Mr Rahme had a duty to exercise due diligence under s 27(1) of the WHS Act which included, broadly, taking reasonable steps to; 1. ensure that Rahme Civil had available, implemented and enforced appropriate resources and processes to eliminate or minimise risks to safety from work carried out as part of the conduct of the business, including adequate processes for risk assessment, reporting hazards and assessing and managing risks; 2. verify that such resources and processes were provided by Rahme Civil and used by the workers, by requesting reports from the site workers on safety matters (including the implementation of measures to address hazards at the site), implementation of the demolition work plan and demolition site plan, carrying out a risk assessment, conducting regular inspections of the walls, foundations and site generally, inspecting and complying with safety documents when at the site, and engaging competent persons, such as engineers, where required in accordance with documented systems of work, or where otherwise appropriate; and 3. inform workers and other persons of the risk of wall or foundation collapse, due to the excavation and demolition works.
2. The evidence in my view, supports a finding that Mr Rahme failed to exercise his due diligence obligations, including taking the reasonable steps outlined in the Summons.
3. As the Director of Rahme Civil, Mr Rahme did not ensure that Rahme Civil engaged a competent person, such as a structural engineer, prior to demolition and excavation works commencing to assess and provide advice regarding the identified hazards and control measures to manage identified risks, even though the Rahme Site Control Plan (namely, SafeWork Method Statement - Demolition) expressly identified this as a control measure to manage the hazard (exhibit A, Vol 1 Tab 27, p. 25).
4. Pre-Incident and post the 30 October collapse, Mr Rahme did not ensure that Rahme Civil engaged a geotechnical engineer or structural engineer, request Scopeview to engage such engineers, to assess the ground conditions at the site and the conditions of the walls and foundations at the site, nor did he direct Rahme Civil workers or Scopeview to apply control measures to manage the risks associated with the hazard, including adequately bracing the walls, adequately shoring and battering the excavation sites and creating exclusion zones, where appropriate.
5. Prior to the Incident, all work health and safety information, including safety matters and concerns, were communicated verbally, rather than by written processes and procedures (exhibit A Vol 3, Tab 53, p. 3; exhibit A Vol 3, Tab 55, pp. 8-9).
6. There is no evidence of written communication of essential information, or of work health and safety training specific to the hazard, or generally, and there is no dedicated safety position at Rahme Civil (pre or post Incident).
7. Pre-Incident, there was no site-specific documentation completed in accordance with the Rahme Civil Site Control Plan, to identify hazards and manage risks. The requirements were not implemented by Mr Rahme or the Rahme Civil workers, and there is no written evidence or records that demonstrate that the Site Control Plan was in fact used at the site.
8. Mr Rahme did not raise concerns with Scopeview regarding the inadequate bracing and shoring to manage risks associated with the hazard while undertaking excavation and demolition (exhibit A, Vol 3 Tab 55 pp. 12-13).
9. Prior to commencing works, Mr Rahme did not direct Rahme Civil workers to apply adequate controls (i.e. adequate bracing, risk assessments and engineering assessments) when Rahme Civil workers removed the ceiling and roof at the site, despite the clear inference that this would likely impact on the structural integrity of the affected walls.
10. Mr Rahme had, or ought to have had, an awareness of the hazard pre-Incident, due to the 30 October collapse, yet he failed to respond adequately either directly, or through a request of Scopeview, engaging a competent person to assess the site, undertaking regular documented risk assessments, informing workers of the hazard, creating exclusion zones until the risks were appropriately addressed and regularly checking on and documenting changes to the walls or foundations.
11. Mr Rahme did not request and verify essential information and documents from Scopeview, such as dilapidation reports, engineering reports, and HSMP requirements, in relation to the excavation and demolition works prior to the Incident.
12. It is evident that Mr Rahme, through Rahme Civil, continued to permit workers/other persons to work in and around the inadequately shored excavations and foundations, and inadequately braced walls at the site, without informing the workers/other persons of the risk of wall or foundation collapse, due to the excavation and demolition works, and without creating an exclusion zone and implementing more appropriate control measures.
13. Therefore I find that Mr Rahme failed to take reasonable steps in exercising due diligence to ensure that Rahme Civil complied with its duties and obligations under the WHS Act, in particular: 1. ensuring that the company had available for use, and used, appropriate resources and processes to eliminate or minimise risks to safety from work carried out as part of the conduct of the business, by; 2. directing or instructing that the company undertake, or verify that the principal contractor had undertaken, an adequate risk assessment of all masonry brick walls prior to the commencement of any demolition and excavation works at the site; 3. directing or instructing that the company engage, or verify that the principal contractor had engaged, a geotechnical engineer to undertake an assessment of the soil and groundwater conditions at the site, and provide advice and recommendations on how identified hazards and risks should be managed prior to the commencement of any demolition and excavation works at the site; 4. directing or instructing that the company engage, or verify that the principal contractor had engaged, a structural engineer to undertake an assessment of all existing masonry brick walls and foundations at the site and provide advice and recommendations on how identified hazards and risks should be managed prior to the commencement of any demolition or excavation works at the site; 5. directing or instructing that the company develop, implement and enforce, or verify that the principal contractor had developed, implemented and enforced, adequate safe work methods for excavation and demolition processes that specified control measures for the safe management of existing masonry brick walls at the site; 6. verifying, by enquiries, site observation, meetings, arranging independent auditing, or inspection of documentation, that one or more of the resources and processes listed in (a) above were provided, implemented, and used by the company's workers and demolition and excavation contractor when undertaking work for, on behalf of, or under the influence of, the company in its business or undertaking; 7. verify that such resources and processes as particularised in paragraph (a) were provided by the company and used by the workers, by requesting reports from the workers at the site on safety matters, including the implementation of measures to address hazards at the site; and 8. inform other persons, including Mr Maatouk and Mr Rokoivaulevu, of the risk of wall or foundation collapse, due to the construction and demolition works.
14. I find that Mr Rahme failed to take the pleaded reasonable steps, and that his failure to take such steps represented a failure to comply with his duty pursuant to section 27(1) of the WHS Act. These failures were a significant or substantial cause of Mr Maatouk and Mr Rokoivaulevu being exposed to the pleaded risk, and as a result Mr Rahme has committed a Category 2 offence pursuant to section 32 of the WHS Act.

Conclusion in relation to Mr Rahme

1. I find that the prosecutor has established to the requisite standard each of the elements of an offence in respect to a contravention of section 32 of the WHS Act, in relation to a failure by Mr Rahme to comply with his section 27(1) duty on 14 December 2020. Mr Rahme is convicted.

Orders

1. I make the following orders: 1. Rahme Civil Pty Ltd is convicted. 2. Rabih Rahme is convicted. 3. The matter will be listed for sentence hearing on a date to be fixed.

Amendments 20 June 2024 - Amending typographical error. 20 June 2024 - Amending typographical error. 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: 20 June 2024