SafeWork NSW v Technical Works Pty Ltd - [2022] NSWDC 454 - NSWDC 2022 case summary — Zoe

NSWNSWDC

SafeWork NSW v Technical Works Pty Ltd

[2022] NSWDC 454

District Court of NSW|2022-09-30

View original source

At a glance

Source facts

Court

District Court of NSW

Decision date

2022-09-30

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
(2000) 49 NSWLR 610 EPA v Barnes [2006] NSWCCA 246 Johnson v The Queen [2004] HCA 15
(2004) 78 ALJR 616 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Mill v The Queen [1988] HCA 70
(1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39

Source

Original judgment source is linked above.

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37(2000) 49 NSWLR 610 EPA v Barnes [2006] NSWCCA 246 Johnson v The Queen [2004] HCA 15(2004) 78 ALJR 616 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Mill v The Queen [1988] HCA 70(1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited

Judgment (25 paragraphs)

[1]

Background

The parties presented an Agreed Statement of Facts and this material is summarised below.
Technical Works conducted a business or undertaking which involved managing construction projects. Mr Carlo Salim was the director of Technical Works.
The project at the site involved the development of a three-storey hotel building comprising of a ground floor hotel lobby and retail space, 32 hotel apartments and two levels of basement carparking. The development had an internal courtyard.
Technical Works employed: 1. Mr Justin Francis as Site Manager. He was responsible for all aspects of construction works, including dealing directly with trades, supervising works, site safety, and materials handling. He reported directly to Mr Salim. 2. Mr Adrian Francis as Leading Hand. He was responsible for site safety, inductions and coordinating labourers. He reported to Mr Justin Francis.

[2]

The Site

Immediately to the west of the site was a single level building which housed the Kiama Livestock and Business Centre Ltd (Business Centre). The site and the Business Centre were separated by a grass laneway. There was a grass carpark at the rear of the Business Centre. Approximately 50 metres to the west of the site was Kiama train station.
To the east of the site was the Grand Hotel, which was on the corner of Bong Bong Street and Manning Street. There was relatively heavy pedestrian traffic passing the site, including members of the public walking between the train station and the Kiama town centre.
From mid to late March 2019 Universal Propping installed a 36-metre electric tower crane at the site. The tower crane was installed in the area which was to become the internal courtyard.
As at 15 May 2019 the building had been erected to its highest structural point. Scaffolding was erected along the perimeter edge of the front of the site (facing Bong Bong Street) and around the perimeter of the internal courtyard. The courtyard was approximately 13 metres long (east to west) and 5 metres wide (north to south).
At the front of the site on Bong Bong Street was an area known as the "work zone". The work zone was used for delivery and disposal of building materials and as a landing area for loads lifted by the tower crane.
The work zone was partially barricaded by orange plastic impact barriers running parallel to the site however the barriers were not filled with water. The barriers to the work zone were not adequate to prevent access by unauthorised workers or members of the public.
The scaffolding on the north-eastern side of the internal courtyard had been erected with a small vertical opening approximately two to four metres wide. The first level wall panels had been erected in the building. The internal scaffolding had stair access to the roof. The internal scaffolding had been erected with a number of standards which protruded three metres vertically from the scaffold deck.

[3]

The Incident

On 15 May 2019 Mr Pessoa and Mr Lamont were directed by Mr Justin Francis to commence lifting packs of formwork timbers (formwork packs) from the internal courtyard to the work zone.
Each formwork pack was separated by gluts. Each formwork pack was approximately 3,600 mm long, 460 mm high and 700 mm wide. Each formwork pack contained 49 timbers.
Prior to the incident the formwork packs were lifted and transferred by the tower crane, three formwork packs at a time. The total size of three formwork packs was approximately 3.6 metres long, 1.4 metres high and 700 mm wide. The total weight of a triple pack was approximately 700 kg.
The formwork packs were rigged using a basket hitch technique. A basket hitch involves the dogman using slings to cradle the load. The loads were slung by Mr Lamont to the hook of the tower crane with two 6-metre polyester web flat slings.
Prior to the incident Mr Pessoa and Mr Lamont had lifted and moved approximately five loads at the site, each consisting of three formwork packs.
Prior to the incident the vertical opening in the scaffolding referred to in par 24 above had been used as a path of travel for loads lifted by the tower crane from the courtyard to the work zone.
The loads were lifted by the tower crane and manoeuvred through the vertical opening in the scaffolding, brought out and slewed in an anticlockwise direction before being lowered into the work zone.
This path of travel was used because when the loads were raised to their highest point, the protruding standards of the scaffolding impeded the loads being transferred directly to the work zone. The path of travel meant the loads of the tower crane travelled over the neighbouring building and public access areas.
As the loads were lifted from the courtyard, Mr Lamont would ascend the internal scaffolding stairs to the roof of the building to watch the path of travel of the load. From this position Mr Lamont did not have a direct line of sight of the work zone where the loads were to be landed.
Mr Pessoa operated the tower crane using the handheld remote control. Mr Pessoa was positioned in the courtyard when the loads were lifted then moved to the front of the site in a position where he could see the work zone to land the loads. Mr Pessoa and Mr Lamont communicated via two-way radio.
On 15 May 2019 Mr Abourizk was instructed by Form Group to drive his truck to the site to collect formwork packs.
Upon arrival at the site Mr Abourizk was directed to park his truck in the work zone. Due to the presence of another vehicle in the work zone, about three quarters of Mr Abourizk's truck remained outside the work zone.
Mr Abourizk's truck was equipped with a vehicle-mounted crane. Mr Abourizk was directed to load a formwork pack on to the truck which had been placed in the work zone. Mr Abourizk commenced loading the formwork packs using the vehicle-mounted crane. Mr Abourizk was not wearing a hard hat.
Whilst Mr Abourizk was in the work zone, Mr Lamont and Mr Pessoa were in the process of securing and lifting a load of three formwork packs for transportation to the work zone. Mr Abourizk was not informed that the tower crane was operating and was about to transfer a load to the area in which he was working.
Mr Pessoa lifted the load using the tower crane's handheld remote control and manoeuvred it through the vertical opening in the scaffolding on the northern side of the courtyard. Mr Pessoa took the load about three quarters of the way along the boom to a position outside the perimeter of the building. Mr Pessoa began to slew the boom in an anticlockwise direction. The load travelled in an anticlockwise direction over a grass parking lot and the adjacent building towards the work zone at the front of the site and towards Mr Abourizk's truck.
As the load was being transferred towards the work zone, Mr Pessoa moved position to observe it. Mr Pessoa was standing in the driveway of the site looking at the building and the load, and towards the street. Mr Pessoa climbed onto the back of a truck to obtain a better view of the load.
As the load was being transferred towards the work zone, Mr Lamont climbed the scaffold stairs and moved to the south-west corner of the building to observe the load.
As the load passed a tree to the west of the site it began to swing. Mr Lamont called Mr Pessoa via the two-way radio to advise him to slow the movement of the tower crane.
The load continued to swing and started to bounce. The load reached the south-west corner of the site and then dropped, falling onto the road and the pedestrian footpath near the adjacent building in close proximity to the back of Mr Abourizk's truck. The timber struck the ground and ricocheted into Mr Abourizk causing him serious injury.
Mr Justin Francis ran to Mr Abourizk's location and saw he was lying on the footpath with timbers on top of him. Mr Justin Francis started throwing the timbers off Mr Abourizk to free him. An ambulance was called and Mr Abourizk was taken to Wollongong Hospital for emergency treatment.

[5]

Guidance Material

Clause 314 of the Work Health and Safety Regulation 2017 (the Regulation) provided that the principal contractor for a construction project must put in place arrangements for ensuring compliance at the workplace with a number of provisions in the Regulation, including Division 10 of Part 3.2 (Falling Objects).
Clause 54 of the Regulation provided that a person conducting a business or undertaking (PCBU) at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with an object falling on a person if the falling object is reasonably likely to injure the person.
Clause 55 of the Regulation provided that if it is not reasonably practicable to eliminate the risk referred to in cl 54, the PCBU must minimise the risk of an object falling on a person by providing adequate protection against the risk. Clause 55 provided as an example of a system to minimise the risk of falling objects: "providing an exclusion zone that persons are prohibited from entering".
Clause 39 of the Regulation provided that a PCBU must ensure that information, training and instruction provided to a worker is suitable having regard to the nature of the work carried out by the worker, the nature of the risks associated with the work at the time the information, training or instruction is provided, and the control measures implemented.
The SafeWork NSW Code of Practice, How to Manage Work Health and Safety Risks, dated December 2011 (Risks Code) was published and available to Technical Works prior to the incident. The Risks Code outlined the risk management process and the hierarchy of controls. In respect to isolation, the Risks Code provided "This involves physically separating the source of harm from people by distance or using barriers".
The Safe Work Australia, General Guide for Cranes, dated December 2015 (General Guide) was published and available to Technical Works prior to the incident. The General Guide provided the following relevant information: 1. If you hire or lease a crane, you have management or control of that plant for the period you have hired it. Both you and the person you have hired or leased it from will have duties to eliminate or minimise the risks associated with the plant, so far as is reasonably practicable. 2. Hazards can be identified by, amongst other things, observing the workplace to identify areas where cranes operate and how they interact with other vehicles, pedestrians and fixed structures such as overhead electric lines and asking the crane operator and crew about problems they encounter including with operation. 3. People who work with or near cranes are most at risk. Some of the risks when using a crane include contact or collision of a load with people and falling objects. 4. If it is not practicable to eliminate a hazard, isolate the hazard from people eg use concrete barriers to create an exclusion zone to separate crane operations from workers. 5. Documenting operating and lifting procedures can help define responsibilities and manage crane activities in a logical and systematic way. This means the crane operation is more likely to be carried out safely. Lifting procedures should be prepared to suit the crane, the work and the working conditions. A Safe Work Method Statement will be required for crane work, including work defined as high-risk construction work. Documented lifting procedures may include, amongst other things, the position of the crane, where loads were to be lifted (eg a diagram showing a plan view of the site); the slinging and lifting sequence and the rigging requirements of the job. 6. In respect of "general lifting" tasks, loads of timber or joists should be strapped together and lifted in a flat position to prevent individual items slipping. Taglines should be used as needed to control loads. Whenever basket hitches are used the sling needs to be positively restrained from sliding along the load. 7. The risk of falling objects causing injury to workers and other people must be eliminated, or minimised, so far as reasonably practicable including preventing objects from falling freely or providing a system to arrest the fall of an object. 8. Loads should not be lifted over public access areas including footpaths, roads, highways, railways, waterways and buildings. If there is a risk of people being hit by falling objects control measures like exclusion zones or suitably designed gantry cranes should be used to prevent people being hit by falling objects during lifting operations. 9. Where possible, site access should be restricted to people who are directly involved with crane activities. Movement of people and mobile plant at the workplace should be minimised while lifting is taking place. 10. Exclusion zones should be established around cranes and adjoining areas to stop people entering the area and being injured by the crane or falling objects. The size of the exclusion zone should be based on a risk assessment.
The WorkCover NSW Code of Practice, Construction Work, dated July 2014 (Construction Code) was available to Technical Works prior to the incident. The Construction Code provided the following relevant information: 1. Falling objects can pose a significant risk and cause serious injuries to workers at construction workplaces or members of the public if control measures are not implemented to eliminate or minimise associated risks. 2. Control measures that can be implemented to manage the risk of falling objects when undertaking construction work include closure of the adjoining area to form an exclusion zone, using a spotter on the ground level when loads are being lifted to higher level, using the appropriate equipment to raise and lower objects, and loading pallets correctly to ensure load stability.
Prior to the incident the Australian Standard 2550.1-2011 Cranes, hoists and winches (Safe use) (the Standard), was published and available to Technical Works. The Standard provided that handling of loads over places where the public have access should be avoided. Where this is not possible, barricades should be positioned and maintained at a sufficient distance around the operating area beneath the crane to prevent people encroaching on that area.

[6]

Systems of Work Before the Incident

Prior to the incident Technical Works had developed a Construction Site Management Plan dated October 2018 for the site (the Plan). The Plan did not contain any information on how risks associated with the use of the tower crane were to be managed at the site.
The Plan contained a Traffic Management Plan for movement of vehicles however it did not provide any information on how loads of building materials were to be lifted and transported using the tower crane.
Part 6.1.3 of the Plan identified the risk of public safety of footpaths and identified the control measures as including "continuous wire mesh fence and shade cloth 1800 mm high erected on boundary or solid hoardings". The person responsible for implementation of the Plan was Technical Works.
The work zone at the site consisted of approximately six orange plastic impact barriers which were not filled with water. The barriers did not extend around the entire work zone and were not positioned a sufficient distance around the operating area beneath the tower crane to prevent people encroaching into the area.
Technical Works did not maintain exclusion zones to separate the workers and other persons from the crane lifting operations. The work zone was not an adequate exclusion zone for the crane operations.
Drivers attending the site, such as Mr Abourizk, were permitted to enter the work zone to load trucks and to assist landing loads from the tower crane. Mr Abourizk had not been inducted into the site or provided with any information about how the risks associated with use of the tower crane were to be managed. Mr Abourizk was not informed that the tower crane was operating and transferring a load to the area in which he was working.
Access to the work zone was not adequately monitored by Technical Works to ensure workers and other persons did not enter it.
Technical Works did not develop and implement, nor require Universal Propping to develop and implement, a lifting plan which set out how the loads were to be lifted, so as to avoid the loads being lifted over persons, adjacent buildings and public access areas, so far as was reasonably practicable. The path of travel meant that workers and other persons were at risk of being crushed, struck or otherwise coming into contact with a falling load.

[9]

Systems of Work Prior to the Incident

A "site file" was created for every job. The site file contained a Construction Management Plan, Site Management Plan, Traffic Management Plan, induction paperwork and all relevant SWMSs. The site file assisted the site manager and site safety officer to ensure that a safe system of work was formulated, recorded and implemented.
When safety issues were detected, the site officer and site manager communicated with each other and with the respective subcontractor's site manager. Usually, a toolbox talk would take place with all workers on site or the site manager for Technical Works would request that the subcontractor's site manager sit with his team and discuss the safety issue. Complex safety issues were to be escalated and brought to Mr Salim's attention.
The site safety officer's role was to ensure that all SWMSs from subcontractors on site were reviewed and implemented. The safety officer also carried out inductions and inspected any licences or certificates of plant and machine operations.
Technical Works enforced the requirement that all personnel working on the site were inducted and participated in toolbox talks to ensure they were aware of the safety parameters of working on site with the tower crane in operation.
In 2012 Technical Works engaged an external safety consultant to assist in developing and implementing new safety systems and procedures. The external safety consultant set up templates for a SWMS and a Construction Site Management Plan. The Construction Site Management Plan was further updated in October 2018.
Technical Works engaged an external traffic management consultant to assist in developing a Traffic Control Plan. Details of the Traffic Control Plan, loading zone and exclusion zone were shown during toolbox talks. All traffic control was outsourced to a fully accredited and certified traffic control company.
The Construction Management Plan included Traffic Control Plans which set out the location of traffic signage surrounding the site and alerted the public to the presence of the site.
The Construction Management Plan included arrangements for managing work health and safety incidents. All workers on site had a duty to report any incidents that occurred on site, either to the site manager or construction manager.
The Construction Site Management Plan identified the risk to public safety on footpaths and identified the control measures, including continuous wire mesh fence with shadecloth which was 1800 mm high erected on boundary or solid hoardings.
Technical Works set up a "Work Zone" to be used for delivering and removing construction materials and for picking up and landing loads from the tower crane. There was a signpost and a barricade with orange plastic impact barriers. The Construction Site Management Plan included a rule for subcontractors that "if an area is barricaded do not enter the barricaded area unless authorized to do so".
The entrance to the site had temporary fencing and a sign with images of the protective equipment required to be worn on site. The sign also included instructions that all visitors must report to the site office to be inducted.
Technical Works notified all subcontractors that no personnel were to enter or alter the exclusion zone around the tower crane.
Technical Works required Universal Propping to provide a SWMS for lifting material with a crane. Technical Works also required Form Group to provide a SWMS. Mr Adrian Francis reviewed both SMWSs prior to commencement of work at the site.
Mr Salim stated that to the best of his recollection, in the 12 months prior to 15 May 2019, Technical Works spent approximately $5,500 on safety training, $3,500 on Personal Protective Equipment and $150,000 on other safety management.

[15]

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 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 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 defendant's level of culpability are based upon the following: 1. Technical Works knew of the risk. In any event the risk was obvious and foreseeable as there was guidance material directed to this particular risk. 2. While Technical Works had no expertise in the operation of a tower crane, it had a duty to identify hazards associated with crane work. Basic observation of the lifting method and the use of the work zone should have led to Technical Works perceiving the hazards and controlling them. 3. The likelihood of the risk occurring was significant. Every time the crane lifted a load when there were workers or other people under the load, the risk was present. 4. The potential consequences of the risk were death or serious injury. 5. Simple and well-known steps were readily available to eliminate or minimise the risk. 6. There was no great burden or inconvenience in these steps being implemented. 7. Mr Abourizk suffered several injuries including a traumatic brain injury. He is now unable to drive a vehicle or return to work. In relation to the s 33 offence, no person was injured. 8. The maximum penalty for the s 32 offence is a fine of $1,500,000. The maximum penalty for the s 33 offence is a fine of $500,000. This reflects the legislature's view of the seriousness of the offences.
I find that the level of culpability of Technical Works for the s 19(1) offence is in the mid range.
I find that the level of culpability of Technical Works for the s 19(2) offence is in the mid range.

[19]

Capacity to Pay a Fine

I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."
Mr Salim provided financial evidence (including tax returns and financial statements) in DX 1 as follows: 1. In 2018/2019 financial year, Technical Works had total trading income of $10,744,708 and an operating profit of $77,437. The company had total assets of $4,444,897, nett assets of $2,735,576 and retained profits of $2,690,576. This was the financial year in which the offences occurred, yet no provision was made for the prospect of prosecutions and fines. The company had no bank loans. 2. In 2019/2020 financial year, Technical Works had total trading income of $4,995,261, an operating loss of $339,533, and a nett income of $0. The company paid Mr Salim a franked dividend of $250,000 which reduced retained profits to $2,100,923. The company had total assets of $2,470,075 and nett assets of $2,146,043. The company had no bank loans. 3. In 2020/2021 financial year, Technical Works had total trading income of $593,209 and made a loss of $1,234,305. The company had total assets of $764,001 and nett assets of $711,738. The company paid Mr Salim a franked dividend of $200,000. The company had no bank loans. 4. In 2021/2022 financial year, Technical Works had no income from construction work and made a gross loss of $486,887. It had total assets of $583,859 and nett assets of $81,513. In the balance sheet of the company, non-current liabilities included a loan from Mr Salim of $78,645 and a "Provisional Liability" of $368,000. There was no explanation as to how Mr Salim was able to lend $78,645 to the company in a year when his only personal income was a franked dividend of $50,000. There was no explanation of the "Provisional Liability" entry. The company had no bank loans.
Mr Salim said in DX 1 that in 2021/2022 there had been a "devastating" effect on the business of Technical Works caused by the pandemic, floods and worldwide supply chain shortages. How any of these events had impacted the business was not explained.
Mr Salim said in DX 1 that Technical Works was unlikely to be able to obtain a loan to pay a fine. There was no evidence for this view. The company has had no bank borrowings in the last four financial years, not even a bank overdraft. He said that the current rectification works, which are costing the company money to carry out, were being "funded by other external commercial entities that I am personally associated with". There was no disclosure of the names of these "entities", the nature of how they were "personally affiliated" with Mr Salim, or the level of funding that they provided. Such bare statements raise more questions than they answer. However, they do demonstrate that Technical Works has access to finance when it needs it.
Mr Salim said in DX 1 that the imposition of a large penalty "would force me to put the business into liquidation". That was not Mr Salim's approach in 2020/2021 when Technical Works made a loss of $1,234,305 or in 2021/2022 when it made a loss of $486,887. Somehow, somewhere, funds were found to keep the company solvent and to enable Mr Salim to discharge his duty as a director not to trade while insolvent.
Mr Salim provided evidence in DX 1 about his personal finances. He lives in a home which has a mortgage of $4,120,000. He has family expenses of $255,684 per annum, including $3,640 per week for the mortgage. He also runs two family cars. He has three dependent children. His wife had no income in 2021/2022. The evidence as to how he affords these expenses, with a present income of $50,000 after tax (as per his 2021/22 tax return) was unclear. He did say that he was financially assisted through personal loans from family members, but no detail was given.
Mr Salim said that he conducted a separate business as an architect, under the name MKD Architecture, but his tax returns for the last three years disclose no income from such business. In oral evidence Mr Salim said that in mid-2021 he had to sell the family home for $6,500,000 and "downsize" to a home in the same suburb which was purchased for more than $5,000,000. This gave him cash of approximately $1,000,000 which he put into MKD Architecture. From these funds MKD Architecture "loaned" $550,000 to Technical Works. The 2021/2022 financial statements of Technical Works lists this amount as a "Receivable", so whether it has actually been paid is uncertain.
Mr Salim was asked by the prosecutor the day before the sentence hearing to produce the bank statements for MKD Architecture. The court is aware that bank statements can be obtained at the press of a button. Mr Salim did not bring the bank statements to court.
My misgivings about the evidence concerning capacity to pay are set out above. I find that Technical Works has not discharged its evidentiary onus on this topic. I will however take into account that Technical Works is a modest-sized family company.

[20]

Victim Impact Statement

The defendant was convicted at the sentence hearing on 30 September 2022.
Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 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).
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). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division - s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement - s 30D(1).
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).
The prosecutor tendered a Victim Impact Statement by Mr Abourizk, the injured worker, dated 29 July 2022 (PX 2). Mr Abourizk viewed the hearing by AVL but did not wish to read out his Victim Impact Statement.
On the day of the incident Mr Abourizk travelled to his office in Sydney and was advised that he was needed on a job site in Kiama. He remembers waiting to be loaded at the site and then being back at home a week later. He has no memory of his time in hospital.
Mr Abourizk is now 49 years old. His life no longer consists of going to work to help support his family or having money to enjoy time away with his wife. He cannot go out for more than a few hours due to fatigue and he is unable to walk without the use of a walking stick. This makes simple tasks like shopping very difficult.
Mr Abourizk continues to attend several medical appointments including rehabilitation, a psychologist, pain management clinic and neurologist. Mr Abourizk now relies on medication to help with ongoing pain. As a result of the incident Mr Abourizk now suffers from the following ongoing conditions: 1. Depression. 2. Anxiety. 3. Short attention span. 4. Tinnitus. 5. Photophobia. 6. Short term memory loss. 7. Balance issues.
Mr Abourizk's wife has had to step into a full-time carer role rather than simply that of a wife and life partner. His wife works full-time to support them. Mr Abourizk said that he is no longer the man that his wife married. He becomes short-tempered on a regular basis and struggles to understand the point of view of others. Mr Abourizk misses being the easy-going man he was before the incident, one who did not get angry or anxious.
Mr Abourizk has two adult daughters who live in Queensland. He is unable to visit his daughters as much as he would like due to struggles with depth perception and the impact of the pressure in his head while travelling by plane. His daughters had always described him as "their rock" and now, due to his memory issues and short temper, they do not go to him with their concerns. This causes Mr Abourizk great sadness, as his family is his world, and he hates that the incident has had such an impact on them.
In March 2021 Mr Abourizk's wife was diagnosed with cancer and had to undergo many months of treatment. Mr Abourizk said he was unable to support his wife in the way that she deserved due to his injuries and cognitive impairment. This had a negative impact on their relationship, as she was left to deal with the stress of the situation, which left her feeling very much alone. Mr Abourizk's wife had to return to work earlier than advised, due to his inability to work and provide for their family. This was a very difficult experience which greatly impacted his mental health.
Over time Mr Abourizk lost contact with his work friends as they continued to live their lives, while his had completely changed. The incident has also greatly impacted his relationship with his birth family as they are unable to understand the magnitude of the impact it has had on his life.
Since the incident Mr Abourizk's mental health has been an ongoing battle. There have been times when he has contemplated suicide. He has a daily struggle with PTSD, is sensitive to light, can no longer manage crowded places, jumps at loud noises and is prone to panic attacks. Mr Abourizk stated that his life and his will to live has been greatly impacted due to the incident and, without the ongoing support of his family and his psychologist, he does not believe he would be here to provide his statement.
Driving has always been a great passion of Mr Abourizk. He was always proud to hold a truck licence and be able to earn an income as a truck driver. This is no longer possible due to his injuries. Doctors and Service NSW have deemed Mr Abourizk unfit to hold a professional driver licence due to his head injury. He now holds a Class C licence and is restricted to a 100 km radius. Mr Abourizk feels like a part of his identity has been taken away from him.
I take all of those matters into account on sentence as evidence of the harm caused by offence committed by Technical Works.

[22]

Totality

The charges in the two Summonses arise out the same set of facts. The s 19(1) charge relates to Mr Abourizk who was exposed to a risk of suffering serious injury or death as a result of being crushed or struck by or otherwise coming into contact with a loading from a tower crane. The s 19(2) charge relates to members of the public. The failure by Technical Works to take reasonably practicable steps to guard against the risk is the same in both charges. I must therefore have regard to the principle of totality when imposing sentence. Where a court sentences an offender for more than one offence, the aggregate or overall sentence must be "just and appropriate" to the totality of the offending behaviour: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63. The principle of totality is applicable where the penalty imposed is by way of fine: Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 at 704.
In Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 the High Court expressed a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. In Pearce v The Queen (1998) 194 CLR 610 the High Court said at [45]: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
In EPA v Barnes [2006] NSWCCA 246 at [50] the Court of Criminal Appeal said that if the sentencer believes that the totality principle requires an adjustment to the fines which may otherwise be appropriate, the court should first fix a sentence for each offence and then consider questions of totality.
A recent example of a case under the Act in which this was done is the decision of Judge Scotting in SafeWork NSW v Elgas Ltd [2021] NSWDC 101. His Honour found that the appropriate fine for breach of the s 19(2) duty was $425,000 and the appropriate fine for breach of the s 19(1) duty was $340,000. Taking into account the principle of totality his Honour imposed a fine of $100,000 for the s 19(1) offence. The total fines payable for the two offences amounted to $525,000.
At [89] his Honour said: "I have taken into account the principle of totality. The two offences arise from the same incident. For the breach of the s 19(2) duty, the establishment of an exclusion zone for other persons on the premises was an additional matter that should have been specified in the SOP and the tanker drivers trained on it. In my view, this offence was more serious because there were more people exposed to a risk of death or serious injury. For transparency in the sentencing exercise, I will nominate the appropriate fine for each offence but will reduce the fine for the s 19(1) offence to reflect the just and appropriate measure of the total criminality involved."
In accordance with the authorities referred to above I will take the same approach.
I regard the s 19(1) offence as more serious because of the significant injuries suffered by Mr Abourizk. Fortunately, no member of the public was nearby when the load fell and thus the s 19(2) offence involves risk with no injury.
I find that the appropriate fine for the s 19(1) offence, before any discount for the early plea, is $200,000. I find that the appropriate fine for the s 19(2) offence, before any discount for the early plea, is $60,000. Having regard to the principle of totality, I reduce the fine for the s 19(2) offence to $20,000, before any discount for the early plea.

SafeWork NSW v Technical Works Pty Ltd

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (25 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (25)

Cited By (1)