SafeWork NSW v Scopeview Projects Pty Ltd; SafeWork NSW v Cameron Doueihi

SafeWork NSW v Scopeview Projects Pty Ltd; SafeWork NSW v Cameron Doueihi - [2024] NSWDC 323 - NSWDC 2024 case summary — Zoe

[5]

Reasonably Practicable Measures

Paragraph 26 of Annexure B to the Scopeview Summons pleads particulars of Scopeview's failure to comply with the duty under s 19(1) of the WHS Act as follows: "The defendant failed to ensure so far as is reasonably practicable the health and safety of workers, in particular Mr Maatouk and Mr Rokoivaulevu, in that it failed to take one or more of the following reasonably practicable measures to eliminate, or alternatively minimise if it was not reasonably practicable to eliminate, the risk: (a) Undertake, or require its demolition and excavation contractor to undertake, an adequate risk assessment of all masonry brick walls at the Site, which included: (i) consideration of the excavation and demolition plan for the works; (ii) any engineering or technical advice in respect to the structural stability of the walls; (iii) identification of hazards caused by the interface between unbraced, unstable walls during demolition and excavation, and persons at the Site; and (iv) the development and implementation of adequate control measures for the identified hazards; (b) engage, or require its demolition and excavation contractor to engage, 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; (c) engage, or require its demolition and excavation contractor to engage, 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; (d) Develop, implement and enforce, or require its demolition and excavation contractor to develop, implement and enforce, 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; (e) Developing, implementing and enforcing a system for the timely exchange of essential information between the defendant, its excavation and demolition contractor, Rahme Civil, and workers as to hazards and risks associated with demolition and excavation works on the safe management of existing masonry brick walls at the Site;"
Paragraph 12 of Annexure A to the Doueihi Amended Summons pleads particulars of Mr Doueihi's failure to comply with the duty under s 27(1) of the WHS Act as follows: "The reasonable steps the defendant should have taken in exercising due diligence to ensure the company complied with its duties and obligations under the Act included one or more of the following: (a) 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: (i) Directing or instructing that the company undertake, or require its demolition and excavation contractor to undertake, an adequate risk assessment of all masonry brick walls prior to the commencement of any demolition and excavation works at the Site; (ii) Directing or instructing that the company engage, or require its demolition and excavation contractor to engage, 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; (iii) Directing or instructing that the company engage, or require its demolition and excavation contractor to engage, 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; (iv) Directing or instructing that the company develop, implement and enforce, or require its demolition and excavation contractor to develop, implement and enforce, adequate safe work method statements for excavation and demolition processes that specified control measures for the safe management of existing masonry brick walls at the Site; (v) Directing or instructing that the company develop, implement and enforce a system for the timely exchange of essential information between the defendant, its excavation and demolition contractor, Rahme Civil, and workers as to the hazards and risks associated with demolition and excavation works on the safe management of existing masonry brick walls at the Site; (b) Verifying, by enquiries, site observation, meetings, arranging independent auditing, or inspection of documentation, that one or more of the resources and processes listed in paragraph 12(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; (c) Verify that such resources and processes as particularised in paragraph 12(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;"

[6]

Background

The parties presented a combined Amended Agreed Statement of Facts (PX 1, Tab 3) and this material is summarised below.
Scopeview conducted a business or undertaking that involved the construction of residential homes and commercial building projects in the Sydney metropolitan region.
Scopeview's business included demolition, excavation, concreting, termite protection, timber framing, bricklaying, roofing, rendering, plumbing, plastering and tiling.
In or around June 2020, Scopeview was engaged by the owner of 61 Gilgandra Road, North Bondi, NSW (the Site) to undertake extensive alterations and additions to the existing residential building at the Site.
Mr Doueihi was: 1. The sole director of Scopeview. 2. A working director. 3. A member of Housing Industry Australia and the Master Builders Association. 4. Responsible for managing all aspects of the business.
Mr Raymond Tayoun was engaged by Scopeview as the project manager for the construction project at the Site and was responsible for managing day-to-day operations at the Site, including the building and construction works, and work health and safety.
Scopeview engaged Mr Maatouk and Mr Rokoivaulevu as labourers to undertake work at the Site. Mr Maatouk was the leading hand at the Site.
Rahme Civil Pty Ltd (Rahme Civil) conducted a business or undertaking that involved asbestos removal, demolition and excavation in civil engineering and residential construction projects in the Sydney metropolitan region.
Between June 2020 and 4 September 2020, Scopeview subcontracted Rahme Civil to demolish the existing residential building and perform excavation work at the Site.
Rahme Civil was subcontracted by Scopeview on an hourly basis to conduct works at the Site. Scopeview and Rahme Civil had been working together for approximately a year and a half before the incident.
Rahme Civil had management and control of the demolition and excavation works at the Site. Mr Rabih Rahme was the sole director of Rahme Civil. He attended the Site regularly and was involved in regular verbal communication with workers, including Mr Maatouk.
In June 2018, Scopeview had engaged Martens Consulting Engineers as part of a tender process to prepare a Geotechnical Report for 62 Gilgandra Road, North Bondi, a property across the road from the Site (PX 1, Tab 14).
The Geotechnical Report contained information regarding identified risks and control measures specific to 62 Gilgandra Road, North Bondi. In particular, the Geotechnical Report recommended that: "Appropriate support and/or excavation methodologies should be adopted by the excavation contractor and design engineer and approved by a geotechnical engineer."
Scopeview did not apply their knowledge from the Geotechnical Report to implement appropriate controls to manage the identified risks of construction and excavation at the Site.
Scopeview did not obtain a geotechnical report specific to the Site despite similar issues identified in the Geotechnical Report also applying to the construction works at the Site.

[8]

Prior Wall Collapses

On 30 October 2020, Scopeview notified SafeWork NSW (SafeWork) of an incident where a masonry brick wall at the Site partially collapsed onto a neighbouring property, causing damage that required repair (30 October collapse).
Photographs of the 30 October collapse demonstrated sub-optimal shoring at the incident location and undermining of the retained structures and foundations. The wall that collapsed was not braced at the time it collapsed.
SafeWork issued a Prohibition Notice to Scopeview on 30 October 2020 (PX 1, Tab 20). In response to the Prohibition Notice, Scopeview engaged SDS Engineering to assess the structural integrity of the partially collapsed wall. SDS Engineering attended the Site on 30 October 2020 and only assessed the western ground floor external cavity brick wall.
SDS Engineering produced a report (SDS Engineering Report) (PX 1, Tab 21) saying that it assumed the partial collapse could be mainly attributed to impact loading during demolition and/or inadequate propping and lateral support of the masonry wall. The SDS Engineering Report also said that the partially collapsed wall did not meet the robustness criteria with respect to wind-loading.
SDS Engineering made written recommendations about managing the risk of other existing masonry brick walls potentially collapsing.
The SDS Engineering Report identified, amongst other matters, that the partially collapsed wall was at risk of further collapse or structural instability from wind loading and/or impact, and that the hazard associated with a further collapse of the wall was high.
The SDS Engineering Report identified that lateral support must be immediately provided to the wall, including diagonal propping, a continuous walling plate and through bolts penetrating both skins of masonry. It also identified that the partially collapsed wall should remain propped throughout construction. Consequently, Scopeview braced the wall and implemented an exclusion zone.
After the 30 October 2020 collapse, Scopeview did not engage a competent person, such as a structural engineer, to assess the structural stability of other existing walls and foundations at the Site. Nor did Scopeview engage a competent person to advise on managing the hazards and risks of unplanned structural collapses of masonry brick walls at the Site.
After the 30 October 2020 collapse, Scopeview did not take steps to brace, prop or otherwise support all walls that were unstable due to their age or condition.
On 1 November 2020, Mr Doueihi sent the following message (PX 1, Tab 15) in a WhatsApp group chat that included himself, Mr Tayoun, Mr Maatouk and other workers: "Hey boys, Hope you all had a good weekend I think it's best to have a meeting tomorrow for at least 15 minutes and talk about our safety concerns and our responsibilities to ensure our sites are safe. If we can all jot down ideas and processes we can then set out a site safety plan. Ill [sic] be sending an email out to all contractors and asking for all their site safety paperwork, insurances etc. See you all tomorrow."
On 3 November 2020, Mr Maatouk sent Mr Doueihi a message (PX 1, Tab 16) regarding a neighbour's concerns about the 30 October collapse. Mr Doueihi responded to Mr Maatouk's message, saying: "Tell her you're traumatised as well. What can you do".
Mr Maatouk stated that he had raised concerns with Mr Doueihi about the structural integrity of the walls at the Site and that neighbours had also raised concerns that the walls could fall and kill someone.
On or around 5 November 2020, a WhatsApp message (PX 1, Tab 17) sent from Mr Tayoun to Mr Maatouk was shared into the WhatsApp group chat. Mr Tayoun's message said: "Jason - North Bondi, you have Andrew bricklaying tomorrow at 59, and rahme civil taking the rubbish out.. please don't knock any walls down.."
On 11 November 2020 Mr Maatouk sent a message (PX 1, Tab 18) to the WhatsApp group chat with photographs showing cracks in a Site wall. Mr Maatouk said, "monitoring these cracks". Mr Tayoun responded with, "ok, thanks. Will footings be finished today?"
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.
On 1 December 2020, part of a masonry brick wall adjacent to a stairway collapsed at the Site (1 December collapse). This was the wall that Mr Rokoivaulevu had observed moving in late November 2020.
On 1 December 2020, Mr Maatouk sent a video and messages to Mr Tayoun in WhatsApp (PX 1, Tab 24), notifying Mr Tayoun of the 1 December collapse. Mr Tayoun responded, "get a prop under it".
SafeWork was not notified of the 1 December collapse.
After the 1 December collapse, Scopeview did not engage a competent person, such as a structural engineer, to assess the structural stability of the other walls and foundations at the Site and to advise on managing the hazards and risks of other unplanned masonry brick wall collapses.
After the 30 October collapse and the 1 December collapse, neither Scopeview nor Rahme Civil implemented exclusion zones around the existing walls. No barricades were established or erected around walls during the excavation and demolition works or when workers were in or around walls cleaning footings or foundations.
After the 30 October and 1 December collapses, neither Scopeview nor Rahme Civil braced the existing walls at the Site. No risk assessment occurred for hazards and risks associated with working in or around masonry brick walls during demolition and excavation works.

[9]

The Incident

On 11 December 2020, Mr Rokoivaulevu was at the Site digging a trench for a footing near a masonry brick wall that subsequently collapsed on 14 December 2020 (the wall).
Mr Rokoivaulevu stated that on 11 December 2020, Mr Milad Diab, a Rahme Civil machine operator told him, "don't go close to that wall because that wall is already moving". Mr Rokoivaulevu observed old sandstone on the bottom of the wall and said that Mr Diab had hit the wall with the excavator at some point because most of the sandstone was coming off. Mr Rokoivaulevu did not tell Mr Doueihi about this conversation.
At approximately 7.50am on 14 December 2020, Mr Maatouk and Mr Rokoivaulevu arrived at the Site. Mr Tayoun instructed Mr Maatouk and Mr Rokoivaulevu to clean the sand from a trench and the masonry brick wall that Mr Rokoivaulevu was warned about on 11 December 2020.
In accordance with Mr Tayoun's direction, Mr Rokoivaulevu started digging the front of the footpath.
After Mr Tayoun's direction, Mr Maatouk was standing near the wall and talking to a neighbour. Mr Maatouk heard a crack and saw the wall beginning to tilt towards him. Mr Maatouk stepped backwards, turned around, and attempted to move out of the way of the collapsing wall. Mr Maatouk was struck by the wall and landed on a large protruding pile screw which penetrated his body and caused serious injuries.
As at 14 December 2020: 1. The wall was in an old and poor condition. 2. The wall did not have a roof, ceiling, or adjoining wall on one of its sides as part of its support structure. 3. The wall was not braced. 4. No structural engineering assessment or advice had been provided or requested by Scopeview in relation to the conditions, structural integrity, stability and management of the wall. 5. No geotechnical engineering assessment or advice had been provided or requested by Scopeview in relation to specific conditions at the Site prior to works commencing. 6. There had been inclement weather in the days prior to the incident. 7. Star pickets and plywood sheeting had been used by Scopeview as shoring near the wall. 8. The sandstone footings and foundations under the wall were significantly undermined due to nearby excavation work, inclement weather, and the ground condition at the Site, which was predominantly loose sand. 9. There was no exclusion zone or barricading in place near the wall and surrounding areas where there was excavation or potentially unstable walls, foundations, or footings.

[12]

Systems of Work Prior to the Incident

The contractual agreement between Scopeview and Rahme Civil, the main subcontractor at the Site, was only verbal.
Before commencing demolition and excavation works at the Site, Scopeview did not provide Rahme Civil with work health and safety information, such as the Demolition Site Plan, Demolition Work Plan, and Safe Work Method Statement (SWMS) for Demolition and Excavation.
Rahme Civil did not request these documents from Scopeview, and they were not provided until after the incident.
Scopeview did not engage a suitably qualified person to undertake a geotechnical assessment at the Site before commencing work.
Scopeview did not engage a suitably qualified competent person, such as a structural engineer, to assess the structural adequacy of the Site's existing brick walls and foundations before commencing work.
The Site was on sandy soil. Scopeview used star pickets and plywood sheeting as shoring methods. However, such methods were ineffective. Inclement weather had caused the sand to wash away, undermining the sandstone footings. In particular, there was an absence of shoring at the rear of the Site and undermining of existing sandstone footing and brick walls at the front of the Site, behind the temporary footings.
Before the 30 October collapse, Scopeview did not have a Work Health and Safety Management Plan (WHSMP). In response to an Improvement Notice issued to Scopeview on 30 October 2020 (PX 1, Tab 22), Scopeview developed a WHSMP (PX 1, Tab 13). However, the content of the WHSMP was not implemented prior to the incident.
The WHSMP outlined "objectives and targets" which referred to a target for employees to have undertaken "General Construction Induction" training, "Site Specific Induction" training, and relevant work activity training as noted in a SWMS.
The SWMS did not contain any risk assessment or control measures for hazards involving falling objects such as masonry brick walls during excavation and demolition works, and the evidence indicates that the SWMS was not used at the Site.
Prior to the incident, Scopeview did not have the remaining masonry brick walls and foundations at the Site assessed by a structural engineer. After the 30 October collapse, Scopeview failed to apply the recommendations contained in the SDS Engineering Report to the remaining walls at the Site.
There is no documented evidence that toolbox talks between Scopeview, Rahme Civil, or workers were taking place on a regular basis before the incident. Verbal discussions were conducted.
Scopeview relied on the experience of workers, including Mr Maatouk as a qualified builder and carpenter, to undertake the task of cleaning the footings as instructed. No formal health and safety training was provided to workers prior to the incident.
Most communication related to work health and safety between Scopeview and workers at the Site was verbal. Mr Doueihi and Scopeview's project manager, Mr Tayoun, used the WhatsApp platform to communicate with workers, but this was generally limited to communicating what tasks needed to be completed each day.
Prior to the incident, Mr Maatouk undertook regular visual inspections of the remaining brick walls at the Site by taking photographs and videos. The photographs and videos showed the cracks appearing and progressing in the brick walls within cross walls after the partial demolition had been completed. Mr Maatouk posted the photographs and videos in a WhatsApp group that included Mr Tayoun and Mr Doueihi (PX 1, Tab 18). Mr Doueihi did not respond.
Mr Doueihi failed to require or ensure that Scopeview had appropriate resources and processes to eliminate or minimise risks to safety.
Mr Doueihi did not require or ensure that an adequate risk assessment of all masonry brick walls was undertaken before any demolition and excavation works commenced at the Site.
Mr Doueihi did not ensure that Scopeview engaged a geotechnical engineer to undertake an assessment of the soil and groundwater conditions at the Site. Mr Doueihi did not require Scopeview to verify that Rahme Civil had engaged a geotechnical or structural engineer, nor did Mr Doueihi instruct Scopeview to engage a structural engineer to assess the masonry brick walls and foundations at the Site.
Mr Doueihi failed to direct or instruct Scopeview to develop and implement adequate safe work methods for the excavation and demolition processes that specified control measures for the safe management of existing masonry brick walls at the Site. Mr Doueihi also failed to verify, on behalf of Scopeview, that Rahme Civil had adequate safe work methods in place at the Site.
Mr Doueihi failed to direct or instruct Scopeview to develop a system for the timely exchange of essential information between all persons at the site as to the hazards and risks associated with demolition and excavation works, or as to the safe management of existing masonry brick walls at the Site.
Mr Doueihi did not verify by enquiries, site observation, meetings, independent auditing or inspection of documentation, that Scopeview had put the resources and processes listed above in place.
Mr Doueihi did not ensure that Mr Maatouk and Mr Rokoivaulevu were informed of the risk of a wall or foundation collapse due to the construction and demolition works.

[14]

Evidence for the Defendant

Mr Doueihi swore an affidavit on 18 July 2024 (DX 1). Mr Doueihi is Scopeview's sole director and swore the affidavit on behalf of Scopeview and himself.
In July 2013 Mr Doueihi founded Scopeview which began trading in September 2013. Scopeview currently holds a valid contractor licence.
In addition to being a member of the Master Builders Association, Mr Doueihi holds the following qualifications: 1. Qualified Supervisor Certificate. 2. Crane licence. 3. Asbestos awareness qualification. 4. White Card. 5. Electrical and tagging qualification.
Mr Doueihi is married with two daughters aged eight and five.
After completing high school Mr Doueihi obtained employment as a crane operator for approximately 12 months. He underwent practical activity courses to become a qualified crane operator. Mr Doueihi then attended TAFE full-time between 2005 and 2006 where he completed a Certificate IV and Diploma in Building and Construction. During this course, Mr Doueihi completed various subjects in occupational health and safety.
After completing TAFE Mr Doueihi went back to work as a crane operator. He also took a role as a leading hand for a number of companies for approximately two years. Mr Doueihi then worked as a technical officer for the Department of Housing between 2009 and 2012. In this role he visited work on vacant residential properties and liaised with contractors. Mr Doueihi then worked in facilities management for approximately 18 months before founding Scopeview.
Scopeview engages in the construction of residential homes. It used to undertake commercial building projects but ceased commercial work approximately four years ago.
Scopeview engages up to five workers, including Mr Doueihi. All workers are engaged full time and hold the following roles: 1. Sole director - Mr Doueihi. 2. Construction manager (also referred to as "project manager"). 3. Leading hands and supervisors.
Mr Doueihi said that Scopeview has undertaken five or six concurrent projects a year. However, from 1 July 2024, this has reduced by approximately 50%. Mr Doueihi gave two reasons for the reduction in work. First, he wanted to spend more time on each project so that he could "more closely and personally focus on making sure that all safety requirements are being met across all the company's sites". Secondly, the construction manager is leaving Scopeview, and Mr Doueihi will be assuming that role.

[19]

Systems of Work After the Incident

Annexed to Mr Doueihi's affidavit are photographs of the reinforcement measures immediately put in place on the Site after the incident.
Following the Nitma Report, all remaining walls at the Site were demolished, despite being braced.
Scopeview also purchased and implemented record keeping software called "SiteBook". SiteBook is a monthly subscription that facilitates record keeping and the storage and management of safety and other material.
Mr Doueihi listed SiteBook's features that are used by Scopeview and himself, including: 1. Storing subcontractors' details including workers' insurance, licences and public liability insurance. 2. Undertaking site inductions of all workers including subcontractors. 3. Recording and storing toolbox talks. 4. Preparing and storing risk assessments. 5. Providing access to and storing WHSMPs. 6. Preparing and storing pre-start work health and safety checklists for every job to log all safety details for assigned contractors. 7. Preparing and storing incident alerts. 8. Sending alerts and instructions to workers and subcontractors.
Mr Doueihi explained that SiteBook has a feature that allows him to review worker information, such as whether they have completed an induction or provided the appropriate licence for the works. SiteBook also enables Mr Doueihi to send alerts and contact workers who have not uploaded the required information onto SiteBook. Additionally, SiteBook provides regular reports and verifications to Mr Doueihi about the status of work and whether certain steps, such as risk assessments and SWMSs, have been created prior to work commencing.
All of the information stored and managed through SiteBook is available to all workers and subcontractors via a QR code located on the front fence of every site.
Weekly documented toolbox talks are conducted on site, allowing workers to discuss relevant safety issues and raise and discuss any issues or concerns. These toolbox talks are then stored on SiteBook. Annexure D to Mr Doueihi's affidavit (DX 1) are examples of these toolbox talks.
Since the incident, Mr Doueihi and all of Scopeview's workers have attended safety training, including online SafeWork seminars. Mr Doueihi has also made use of SafeWork's online resources, such as the "Healthy Work Survey".
In work similar to that involved in the incident, Scopeview now removes all old walls to avoid any similar risk arising. Work is not commenced until all old walls are removed.
Mr Doueihi said that he currently conducts site safety inspections one to two times per week, but that these will increase in frequency when he takes on the construction manager role. Scopeview's current construction manager and leading hand are on site daily and report to Mr Doueihi about any issues that arise. The WhatsApp platform is still Scopeview's main form of communication.

[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].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
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. 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 examined the sentencing process with regard to the WHS 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. Justice Basten at [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 [42] his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS 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 defendants' level of culpability are based upon the following: 1. The risk of an unsupported wall collapsing was actually foreseen by the defendants. Indeed, two unsupported walls had already collapsed at the Site, although Mr Doueihi was not personally informed about the second collapse. The Geotechnical Report for the nearby property spelt out the general risks of unsupported walls, but its findings and recommendations were not applied at the Site. 2. The likelihood of the risk occurring was high. The ground at the Site was fine sand, and the sandstone footings of the walls had been severely weakened by rain and by demolition work. Walls were observed by Scopeview workers at the Site to be cracking and moving. 3. The potential consequences of the risk were death or serious injury. 4. There were simple and available steps to eliminate or minimise the risk, none of which were taken. When the first wall collapse occurred on 30 October 2020, both defendants took the reactive approach of just dealing with the wall the subject of that incident, instead of looking at all the other similar walls on the site, which obviously posed a similar risk. 5. There was little or no burden or inconvenience involved in taking appropriate steps. 6. Mt Maatouk suffered severe injuries, which have left him with significant problems to this day. 7. Scopeview performed its work at the Site with no safety plan and without reference to a SWMS. Nor did it require Rahme Civil to provide or work in accordance with appropriate safety documentation. 8. After the 30 October wall collapse Mr Doueihi suggested by a message that everyone get together and "jot down" ideas to produce a site safety plan, but there was no evidence that this produced any improvement in safety at the Site. 9. The maximum penalty for the offence is $1,766,130 for Scopeview and $353,430 for Mr Doueihi, which reflects the legislature's view of the seriousness of the offence.
I find that the level of culpability of Scopeview is in the high range.
I find that the level of culpability of Mr Doueihi is in the upper end of the mid range. I assess his culpability as slightly lower than that of Scopeview because he was not informed of the 1 December wall collapse.

[30]

Victim Impact Statement

Each defendant was convicted at the sentence hearing on 23 July 2024.
Part 3 Division 2 of the CSP Act deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person: s 27(2)(a) CSP Act.
By s 28(1) a primary victim may prepare a statement that contains particulars of the following, suffered as a direct result of the offence: 1. Any personal harm. 2. Any emotional suffering or distress. 3. Any harm to relationships with other persons. 4. Any economic loss or harm that arises from any matter referred to in (1) - (3) above.
A Victim Impact Statement may be tendered to the court only by the prosecutor: s 30A(2) CSP Act. A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division: s 30B CSP Act. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement: s 30D(1) CSP Act.
A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate: s 30E(1) CSP Act.
Mr Maatouk prepared a Victim Impact Statement that was tendered (PX 2). Mr Maatouk was not present in court and did not wish to read his statement aloud.
Mr Maatouk had worked for Scopeview for four years. Mr Maatouk believed that Scopeview and its staff "had a high standard of ethics and integrity" but he said, "unfortunately, I discovered that it was a deception".
Mr Maatouk described living with physical pain and psychological suffering every day that "is beyond tolerance". Mr Maatouk said that his physical injuries "resulted in a complete personality change" and he went from a calm, happy person, to someone who is "angry and whom no-one wants to be around". Mr Maatouk said that he lost his partner and siblings "due to the radical changes" in his personality, health and overall life.
Mr Maatouk now lives with Post-Traumatic Stress Disorder and experiences recurrent flash-back memories, fear, nightmares, poor sleep, poor appetite, and weight loss. This has caused him to have low energy levels, physical weakness, headaches, uncontrolled crying, an affected memory, and a loss of self-confidence. He believes he has "nothing to look forward to and no hope of returning to my pre-injury life".
Mr Maatouk said that he has had to relearn "basic things" and that he lost "a considerable level of personal qualities that I used to be proud of", describing himself as a "severely traumatised" 28-year-old man.
Mr Maatouk experienced increased anxiety and anguish at the "length of time it has taken Scopeview Projects to be held accountable", saying that Scopeview has taken his confidence and future hopes away from him and has "destroyed my life".

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (33 paragraphs)

Legislation Cited (3)

Cases Cited (18)