SafeWork NSW v Universal Propping & Supports Pty Limited

District Court of NSW|2023-08-23

Background

At all material times the defendant was a company registered in New South Wales.
The defendant has since 2007 carried on a business involving the supply of tower cranes and crane crews to construction sites. At all material times, Frank was the director of the defendant.
In March 2019, the defendant was engaged by Technical Works Pty Ltd ('Technical Works'), the principal contractor of a construction project at a site located at 31 Bong Bong Street in Kiama, New South Wales ('the site') to supply and install a 36m Jib Electric Tower Crane ('Crane') at the site and supply a crew to manage the Crane.
The defendant installed the Crane in the area of the site that was to become the courtyard of a hotel apartment complex to be constructed at the site.
The defendant employed these persons to operate its Crane at the site in the following capacities: 1. Mr Rodrigo Pessoa ('Mr Pessoa') as a crane operator. Mr Pessoa held high-risk work licenses for dogging and tower crane operation. 2. Mr Lloyd Lamont ('Mr Lamont') as a dogman. Although Mr Lamont held a high-risk work license for dogging, he had not worked as a dogman prior to commencing employment with the defendant some three weeks prior to the day of the incident.
Technical Works also engaged the services of Form Group NSW Pty Ltd ('Form Group') to undertake formwork at the site. Form Group engaged workers in various capacities to perform duties relating to the formwork at the site, including Mr Abourizk. Mr Abourizk was engaged as a truck driver, tasked with delivering and collecting formwork materials from construction sites.
Mr Justin Francis ('Mr Francis') was employed by Technical Works as its Site Manager.

The Incident

On 15 May 2019, Mr Pessoa and Mr Lamont were directed by Mr Francis to use the Crane to start lifting packs of formwork timber from the internal courtyard to the work zone for removal from the site.
Each pack contained 49 pieces of timber, stacked seven high and seven wide. Prior to the incident, three packs were lifted at a time. A triple pack of timber measured approximately 3.6 metres long, 1.4 metres high and 700 millimetres wide. The total weight of a triple pack was approximately 700 kilograms.
The triple pack loads were being rigged using a basket technique which involved using the slings of the Crane (attached to the hook) to cradle the load.
Prior to the incident, Mr Pessoa and Mr Lamont had moved five triple packs without incident.
As the loads were being lifted, Mr Lamont was ascending the internal scaffolding stairs to watch its path of travel. The loads were travelling in the path of travel described above at paragraph 17. Mr Lamont did not have a direct line of sight to the work zone at the exterior of the building (where the loads were being landed) from where he was standing.
Mr Pessoa was operating the crane with a handheld remote. He positioned himself in the internal courtyard when the loads were being lifted and was then moving to the front of the site to a position where he could see the work zone to land them. He was communicating with Mr Lamont using a two-way radio.
On the day of the incident, Mr Abourizk was instructed by Form Group to drive his truck to the site to collect triple packs of formwork timber. His truck was fitted with a mounted crane. When he arrived at the site, Mr Abourizk was directed by Mr Francis or a person named 'Ron' from Technical Works to park 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.
The site had fencing which bore signage directing those entering the site to report to the site manager and to wear a hard hat whilst on site.
Mr Abourizk was not wearing a hard hat. He started loading the stacks of formwork using the mounted crane on his truck. He did not know that the Crane was operating and that a load was being transferred to be landed where he was standing.
Whilst Mr Abourizk was loading triple packs in the work zone, Mr Pessoa and Mr Lamont were securing and lifting a triple pack in the internal courtyard. The load was slightly offset (not in a flat position) at the time it was lifted.
Mr Pessoa lifted the load and manoeuvred it through the gap in the scaffolding on the northern side of the courtyard and began to slew the load in an anticlockwise direction and move it towards the work zone and Mr Abourizk's truck.
As the load was being transferred, Mr Lamont climbed the scaffolding stairs. He could not see the work zone from his vantage point. Mr Pessoa had moved to the front of the site and climbed onto the back of a truck to get a better view.
The load passed a tree to the west of the site and began to swing. Mr Lamont radioed Mr Pessoa advising him to slow the movement of the load. Mr Pessoa slowed the load and then sped it up again which caused it to swing. It continued to swing and started to bounce. When the load reached the south-west corner of the site, it dropped and fell onto the road and 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.
Mr Francis ran over to Mr Abourizk who was lying on the footpath covered in timber. Mr Francis began throwing timber off Mr Abourizk to free him.
An ambulance was called and Mr Abourizk was conveyed to Wollongong Hospital for emergency treatment.

Injuries sustained by Mr Abourizk

As a result of the incident, Mr Abourizk sustained the following injuries: 1. a traumatic brain injury; 2. a 10cm laceration to the scalp; 3. a torn retina; 4. hearing issues in his right ear; 5. a clinical rib fracture to the right side ribs 3-4; 6. ongoing ringing in the ears; 7. a hematoma to the left side of the head; and 8. a hematoma to the thigh.
Mr Abourizk was discharged from Wollongong Hospital on 21 May 2019.
On 6 July 2019, Mr Abourizk reported that his eye had been lasered and he required the use of glasses to read. Mr Abourizk has reported: 1. ongoing problems with hearing in his right ear, including a ringing; 2. the hematoma to the left side of the head and his thigh still cause ongoing pain; 3. increased sensitivity to light and sound, balance issues, dizziness, trouble with concentration, fatigue, disorientation and issues with memory, including that he repeats himself often; 4. that he attends a physiotherapist and started cognitive therapy rehabilitation to retrain his brain; and 5. that he also sees a clinical psychologist to manage the depression and anxiety he feels following his injury.
Mr Abourizk has not returned to work. He is unable to drive due to his injuries.

Systems of work prior to the incident

Prior to the incident, the defendant had developed a Safe Work Method Statement ('SWMS') entitled 'Lifting Material with the use of a Tower Crane' which was dated 'from Jan 18' which provided the following information: 1. The crane allocator was to ensure that all crane crews were appropriately qualified for the assigned task and that those qualifications were current; 2. All crane crews were to participate in the site induction and become familiar with the site safe work method statements prior to commencing work; 3. All crane crew must maintain a working knowledge of the Cranes Rigging Plant P/L SWMS and specific safety procedures that apply to some equipment in certain circumstances. Copies of these procedures must be kept by each crane crew and referenced as required; 4. The job step 'isolate crane, working area from vehicles and pedestrians, traffic management' identified the possible hazards as including 'death or injury to persons...[and] loss of production due to exposure of pedestrians to high-risk construction work...' The safety controls for the risk were: 'Do not lift any loads over persons. Barricade area to ensure only essential personnel are in the crane working area during operation. … Employ traffic control as required (Principal Contractor)' 1. The job step 'Slinging the load (AS2550 - Safe use of the Cranes)' identified the possible hazard of 'injury to personnel'. The safety controls identified included including 'Ensure safe rigging/slinging practices are followed as identified in WorkCover certification course, Company Procedures, site inductions and the relevant Australian Standards.' 2. The job step 'Landing the load' identified the possible hazard of 'injury to personnel' and specified the safety controls as 'Dogman to ensure structure or landing site suitable for load and position himself such as not to be struck/crushed by load.'
The SWMS provided that it was to be read and understood and signed off by all workers. It identified the work health and safety legislation of the Australian Capital Territory as being applicable to the tasks as well as the Australian Standards for crane work.
Neither Mr Pessoa nor Mr Lamont had seen the SWMS nor undergone any induction by the defendant.
During Mr Lamont's first week of employment with the defendant, Frank's daughter outlined to Mr Lamont his duties as a dogman for two days during which time Mr Lamont learned how a crane operator and dogman were to communicate and how to sling loads in different ways.

Relevant legislation and guidance material

Clause 39 of the Work Health & Safety Regulation 2017 (NSW) ('WHS Regulation') provides that a person conducting a business or undertaking ('PCBU') must ensure that information, training and instruction provided to a worker is suitable and adequate having regard to the nature of the work carried out by the worker, and the nature of the risks associated with the work at the time the information, training or instruction is provided, and the control measures implemented.
Clause 299 of the WHS Regulation provides that a PCBU carrying out high-risk construction work must, before it commences, ensure that a SWMS for the proposed work is prepared. The SWMS must specify hazards relating to the high-risk construction work including risks to health and safety associated with those hazards, describe the measures to be implemented to control the risks, and describe how the control measures are to be implemented, monitored and reviewed. Clause 300 of the WHS Regulation requires a PCBU that carries out high-risk construction to put in place arrangements for ensuring that high-risk construction work is carried out in accordance with the relevant SWMS.
The SafeWork NSW Code of Practice 'Managing the risks of plant in the workplace' dated July 2014 ('the Plant Code') was an approved Code of Practice pursuant to s 274 of the WHS Act. The Plant Code was available to the defendant prior to the incident. The Plant Code relevantly states that before plant is used in a workplace, a PCBU must provide workers and other persons who are to use the plant with information, training, instruction or supervision that is necessary to protect them from risks arising from the use of the plant.
Prior to the incident, the SafeWork Australia 'General Guide for Cranes' dated December 2015 ('General Guide') was published and available for access by businesses involved in the supply, installation, operation, and management of cranes. The General Guide provided the following information: 1. 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 like overhead electric lines; asking the crane operator and crew about problems they encounter including with operation; 2. 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 peoples and falling objects; 3. If is not practicable to eliminate a hazard, isolate the hazard from people, e.g. use concrete barriers to create an exclusion zone to separate crane operations from workers; 4. 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 SWMS 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, loads to be lifted and where, e.g. a diagram showing a plan view that the site; the slinging and lifting sequence and the rigging requirements of the job; 5. 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; 6. 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; 7. 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; 8. 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; and 9. Exclusion zones should be established around cranes and adjoining areas to stop people entering the area and risk 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 Work Code') was an approved code of practice according to s 274 of the WHS Act. The Construction Work Code was published and available for access by businesses involved in construction work, including work involving the use of cranes. The Construction Work Code provided the following 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; and 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 object, and load 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 for access by businesses involved in the supply, installation, operation, and management of cranes. The Standard was referred to in the defendant's pre-incident SWMS. The Standard relevantly provided: 1. Basket slings shall not be used wherever persons may be located near a lifted load, unless the sling is positively restrained from sliding and the load is secured in the sling; and 2. The handling of loads over places where the public have access should be avoided. Where this is not possible, barricades shall be positioned and maintained at a sufficient distance around the operating area beneath the crane to prevent people encroaching on that area.
The following facts are agreed as between the parties: 1. The defendant did not undertake a risk assessment, or an adequate risk assessment, at the site to identify the risks associated with use of the crane and how it would interact with the surrounding environment, in particular the neighbouring properties and public access areas when obstructions such as protruding standards of scaffolding are introduced. As a result, the defendant did not identify the risk of loads falling from the Crane or assess the risk to determine how it could be eliminated or minimised so far as was reasonably practicable. 2. The defendant did not establish exclusion zones (or adequate exclusion zones) to separate the workers and other persons from the crane operations. 3. The work zone established by Technical Works at the site consisted of approximately six orange red plastic impact barriers which were not filled with water prior to the incident. The barriers did not extend around the entire work zone and were not positioned so as to prevent workers or other persons encroaching into the area under loads lifted and transferred by the crane. On 15 May 2019, Mr Abourizk's truck could not be parked within the work zone due to the presence of other vehicles. 4. The defendant could have required Technical Works to establish an adequate exclusion zone (or zones) prior to any crane work being undertaken at the site. 5. The path of travel used by the defendant for lifting and transporting the formwork packs involved them travelling over an adjacent building and public access areas putting other persons at risk of injury or death from a falling load. 6. The defendant did not develop and implement a documented lift plan which set out the how the load was to be lifted so as to avoid them being lifted over persons, adjacent building and public access areas. 7. The defendant's SWMS stated that loads were not to be lifted over workers and to barricade areas to ensure only essential personnel were in the crane working area during operation. Neither Mr Lamont nor Mr Pessoa had seen a copy of the SWMS prior to the incident. 8. The defendant did not instruct Mr Lamont in relation to use of the safer choke slinging technique for lifting formwork packs. Mr Lamont applied a basket and cradle slinging technique for the loads, which did not adequately secure the load when the load started to swing. 9. The work zone at the site was not adequately monitored by the defendant's workers when the crane work was in progress. Mr Abourizk was directed to park his truck in the work area and to commence loading formwork packs using his vehicle mounted crane. Mr Abourizk was not provided with any information, instruction or warning that the load was being lifted and transferred towards the work zone.

Steps taken after the incident

After the incident, the defendant developed a written instruction for dogging at the site, containing specific information on the correct method of slinging to be used for formwork packs. The defendant provided information, instruction and training to its workers about these new instructions at a toolbox talk on 16 May 2019.
On 17 May 2019, the defendant developed a lift plan for crane work. It included a requirement that all loads were to be lifted directly to the front of the site and identified the area over the neighbouring buildings and public areas as no-go zones.
The defendant revised its relevant SWMS by inserting an appendix which contained the following relevant safety controls: 1. Loads are slung by appropriately qualified/ticketed and competent persons using correct weight and slinging techniques; 2. Arrangements for traffic/pedestrian plans or signage are made to keep persons away from the vicinity of the lifting operation - e.g. established and exclusive zone - especially while loads are raised and traversed off the ground/truck; 3. When lifting loads over walkways, roadways or site, the dog man/rigour must alert all persons verbally in the direct vicinity of the operation to be aware of movement of loads directly above or near those persons; 4. When no area can be cordoned off, a spotter must be used to warn all personnel load being landed; 5. Access ways, pathways, roadways are to be cordoned off whilst landing loads. Use of barricade and/or tape must be placed across area to warn other site personnel; 6. Workers in the direct area to be notified; 7. Correct lifting whilst no one is in direct line of load must always remain the preferred manner in which is to transfer loads across any path to land load; and 8. Loads must be choked and held tight by chains or slings prior to lifting. No cradling.
The defendant also assigned an additional worker to the site as an observer, whose role was to monitor the operation of the Crane and to ensure no persons encroached on its operating areas.

The defendant's duty

The defendant had a duty under s 19(2) of the WHS Act, to ensure, so far as was reasonably practicable, the health and safety of other persons was not put at risk from work carried out as part of the conduct of the business or undertaking.
The defendant's duty is positive, non-delegable and requires it to search for, detect and eliminate, so far as is reasonably practicable, risks to health and safety: WorkCover Authority (NSW) (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 per Hill J at [85].

Particulars of the risk to other persons

The risk was the risk of other persons, in particular Mr Abourizk of suffering serious injury or death as a result of being crushed, struck by or otherwise coming into contact with a load falling from a tower crane.
The defendant has admitted by its plea that there were measures available to manage the risk, so far as was reasonably practicable in paragraph 18 of Annexure A to the Amended Summons.

Sentencing

The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of other persons who may be exposed to the risk.
I have had regard to the principle contained within the WHS Act that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the WHS Act.
The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
The Court is to approach a sentencing exercise on the basis of it being one of 'instinctive synthesis': Markarian v The Queen (2005) 228 CLR 357.
The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: 'The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.'

Objective seriousness of the offence

The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120 at [27]: '…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 offending.'
On offence relating to a breach of s 19 of the WHS Act will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Limited and Anor (No. 3) [2005] NSWIRCComm 61; (2005) 147 IR 111; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng)(1999) 90 IR 464.
The duty of the defendant requires that it ensure so far as reasonably practicable, that the health and safety of other persons is not put at risk from the work carried out as part of the conduct of the business or undertaking, failed to comply with that duty. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers and other persons were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) (1988) 164 CLR 465.
The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 ('Capral Aluminium') at [81].
An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117.
Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31]. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5.
The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). His Honour Justice Basten, under the heading 'Assessment of Risk' said at [34]: 'The sentencing judge commenced his consideration with the proposition that '[g]reater 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 upon an assessment of all those factors.'
His Honour further observed at [42]: 'The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known.'
I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.
The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).
Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include: 1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Nash v Silver City [34]; 2. The availability of steps to eliminate or minimise the risk: Nash v Silver City [34]; 3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City [34] and [53]; 4. Whether the risk was known or ought reasonably have been known to or identified by the offender; 5. Whether the risk was an obvious or clear one; and 6. The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).
However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA 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 failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.'
The following matters are relevant to determining the culpability of the defendant: 1. The risk was obvious and known to the defendant. The risk of 'death or injury to persons' was identified in the pre-incident SWMS resulting from a failure to isolate the crane working area from vehicles and pedestrians. Unsurprisingly, the available guidance material identified the risk of contact or collision of a load with people and falling objects and set out the recommended controls. 2. The gravity of the risk was extreme. On 15 May 2019, the loads that were conveyed over the publicly accessible areas weighed approximately 700kgs. 3. There were simple, straight forward, and available steps which could have been taken to avoid the risk. The SafeWork Australia General Guide for Cranes, December 2015 set out available measures, such as:

having a SWMS, or documented lifting procedure, which identified the position of the crane and safe paths of travel in diagrammatic form;
establishing and maintaining adequate exclusions zones; and
not to lift loads over public access areas, etc. 1. The defendant's pre-incident SWMS contained some of these measures, however, neither of the defendant's workers on site has seen the SWMS; 2. Mr Abourizk suffered significant injuries. 3. The defendant concedes that the risk was foreseeable, and that the defendant breached its duty under s 19(2) of the WHS Act. 4. The defendant asserts that these failures were not deliberate, nor systematic, which I accept. 5. I also note that Frank had twice requested a further contractor to assist as a spotter, but the contractor Technical Works, would not agree to another person assisting on the job (Affidavit of Francis Azzopardi at [19] and [24]). 6. The defendant takes full responsibility for what has occurred and does not blame others for these oversights and failures.

As a consequence of the matters set out above when considered together point to objectively serious offending. This is because the seriousness of the foreseeable harm to others was extreme, and the steps available to avoid the risk were known, or ought reasonably to have been known by the defendant. The parties agree that this matter falls within the mid-range of objective seriousness.

Victim Impact Statement

Mr Abourizk provided a Victim Impact Statement which was tendered, and which I read. Mr Abourizk dialled in through the AVL and listened to the proceedings. He also made a few comments at the conclusion of the sentence hearing, voicing his concern that this incident not happen again on any building site. His comments were very generous and respectful.
Mr Abourizk's Victim Impact Statement was moving, and distressing to read. I am so grateful that I had the privilege of reading that statement, and that Mr Abourizk had the strength to write such a poignant piece.
It is apparent from the statement, that Mr Abourizk has suffered greatly and will continue to do so. The physical injuries that he sustained in this tragic accident were significant, and he is lucky to have survived such an event which has left Mr Abourizk with substantial physical restrictions that are unlikely to improve. It has affected his relationship with his daughters and more so his relationship with his wife, as she has now become his full-time carer. Mrs Abourizk had to also return to the workforce due to the financial difficulties that the accident has caused.
Mr Abourizk's personality has also changed, as he now is short-tempered, suffers from depression and anxiety, and has effected friendship that he had deleteriously. As a consequence of the accident and the injuries sustained, Mr Abourizk suffers from significant mental health issues and continues to see a psychologist, and he states on page 2 of the statement: '18. Also since the accident I am now sensitive to light, can no longer manage crowded places, jump at loud noises and am prone to panic attacks. This is all new to my life since that day in May 2019. I truly believe that without the ongoing support of my family and my psychologist I would not have been able to provide you with this letter to read as I would no longer be here on earth. My life and will to live has been greatly impacted due to this accident.'
I thank Mr Abourizk for the statement, and hope that things may improve for him once this proceeding is concluded.

Deterrence

In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that other persons are not exposed to risks to their health and safety by work carried out as part of the conduct of the defendant's business or undertaking: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 ('Bulga') at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … [75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with other PCBU's working in the building industry.
The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the WHS Act very seriously.
General deterrence is a significant factor when safety obligations are breached, save for in exceptional circumstances: Bulga at [52]. It is to be approached in the context of the industry in which the defendant is engaged, the types of duties performed, as well as the broader hazards and risks associated with the industry. The construction industry is notoriously dangerous and working with cranes is high-risk work requiring additional preparations and observation of safety issues.
However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend. In that context I note that the defendant continues the business of supplying cranes and crane crews to construction sites.
However, as is borne out in the affidavits of Frank and Mitchell, there have been significant steps taken by the defendant, through its directors and employees to address these issues since the accident.
I accept that following the incident, Mitchell has taken over the day-to-day operation of the defendant, especially in relation to the safety and compliance aspects of the operation. Mitchell has also taken over the role of managing the defendant and assisting his father in the business. Further, Mitchell met with SafeWork and organised a toolbox talk with the defendant's workers on site to implement comprehensive procedures to reinforce safety standards.
This is not a defendant who had no systems in place - rather, the systems, and in particular the SWMS, were only given to the builder and not utilised to train the participants in those methods. I am of the view that this incident has acted as a wake-up call to the defendant, and that the systems and mindfulness as to safety within the works performed by the PCBU is now appropriately heightened.
I accept that the prospects of rehabilitation of the defendant are very good, as there have been improvements made and stringent systems are now in place, however, the need for an element of specific deterrence is still necessary in these circumstances.

Aggravating factors

The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing). I am so satisfied.
The defendant's offending conduct exposed a person or persons to a grave risk of death: s 21A(2)(i) of the Sentencing Act.

Mitigating factors

In Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following: 'We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.'
The defendant has not been subject to any prior convictions under work health and safety law: s 21A(3)(e) of the Sentencing Act. This is a significant matter in my mind. Frank has been working in an industry involving the managing of cranes, which involved driving the cranes, operating the cranes, dogging and rigging the cranes and training staff on how to use the cranes, and has been continuously licensed to do so. He set up his own company within that industry in the mid-1990s, which was incorporated and became the defendant. Frank has worked in the cranes and rigging industry for 39 years. Since incorporation, the defendant has not had any convictions with regard to breaches of the WHS Act. This is a very good record for works performed in high-risk circumstances, and this record is a significant mitigating factor.
I accept that the defendant is a corporate citizen of good character and has made significant charitable donations as an active contributor to and sponsor of its community: s 21A(3)(f) of the Sentencing Act.
I accept the defendant is unlikely to reoffend: s 21A(3)(g) of the Sentencing Act, and I accept that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act, for reasons as explained above.
I accept that the defendant has demonstrated that it has accepted responsibility for the offence and has acknowledged the injury, loss and damage caused by the offence: s 21A(3)(i) of the Sentencing Act. The affidavits of Frank and Mitchell exemplify the remorse and contrition, which I accept to be genuine. These steps, to my mind, demonstrate the defendant's acceptance of its breach and has put in place a set of procedures to ensure they comply with the defendant's duties under the WHS Act.
The defendant co-operated with SafeWork NSW during its investigations: s21A(3)(m) of the Sentencing Act.
The defendant entered a plea to an amended summons on 21 November 2022, and I note that there had been 12 directions hearings between the service of the summons and the entry of the plea. The prosecutor rightly raises the question as to whether the delay in the entry of the plea is such that the defendant is entitled to the usual 25% deduction for the utilitarian value of the plea in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the Sentencing Act. However, the Prosecutor very fairly notes that the plea was entered to an amended Summons.
During this prosecution through the Court, I had the opportunity to see both Frank and Mitchell appear on a number of occasions. On the occasions that the matter was before me, Frank and Mitchell always appeared, sometimes unrepresented, but it was clear to me that they were not trying to shirk their responsibilities or ignore them, but simply had trouble obtaining, retaining and maintaining legal representation. I accept that the plea was entered at the first opportunity that they had to receive appropriate advice, and I accept that they are entitled to the full 25% deduction for the utility of the plea.
Both Counsel addressed me with regard to the issue of parity, and directed my attention to a decision of his HH Russell SC DCJ in SafeWork NSW v Technical Works Pty Ltd [2022] NSWDC 454, and my decision in SafeWork NSW v McInerney Enterprises Pty Ltd; SafeWork NSW v Taylor McInerney [2023] NSWDC 56. I have had regard to both of those decisions in coming to my determination in this matter.

Capacity to pay

Section 6 of the Fines Act 1996 (NSW) ('Fines Act') provides as follows: '6 Consideration of an accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) Such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) Such other matters as, in the opinion of the court, are relevant to the fixing of that amount.'
The onus is on the offender to satisfy the Court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of penalty: McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 at [24].
The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16] (Rothman J, Hoeben CJ at CL agreeing).
In Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100, Staff J said at [57]-[58]: 'The principles to be applied in respect of an application under s 6 of the Fines Act were discussed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 are as follows: '[83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at par 50): 'It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201.' [84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at pars 81-82): '... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76).' 'However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed: '... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty … When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence ...' [85] I would reiterate what the Court stated in WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 at 476: 'Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86.''
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.'
The Full Bench of the Industrial Relations Commission of NSW observed in Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153, citing Rahme v R (1989) 43 A Crim R 81 that: 'It is well established that a court should first arrive at a penalty and then review it on the basis of any case properly made out by a defendant of a lack of capacity to pay a substantial penalty or any penalty.'
It follows that the question of capacity to pay and, hence, the exercise of the discretion under s 6 of the Fines Act should be considered after the Court has determined the appropriate fine(s).
I accept that the principles which are then applicable to the exercise of the discretion conferred by s 6 of the Fines Act are as follows: 1. the financial position and means of a defendant should be taken into account when determining the fine to be imposed; 2. the defendant bears both the evidentiary onus and the onus of proof, on the civil standard, in relation to satisfying the Court that he does not have the capacity to meet a fine; 3. it is for the defendant to place detailed financial information that fully discloses its financial circumstances to the Court so that a proper assessment of its capacity to pay can be undertaken; 4. it is for the prosecutor to check the information provided by the defendant and to assist the Court in relation to the assessment of the defendant's capacity to pay; and 5. in any event, notwithstanding the capacity of a defendant to pay a fine, the penalty to be imposed must reflect the objective seriousness of the offence: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at [209]-[210]; McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 at [24]-[25]; SafeWork NSW v Harris Holdings NSW Pty Ltd [2017] NSWDC 299; SafeWork NSW v Harry Zizikas [2017] NSWDC 299 at [134]-[141]; SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 182 at [23]-[24].
The defendant tendered financial records which I accept demonstrated the financial position of the company. Counsel for the defendant did not submit that the company could not pay a fine, but that a significant fine would be very difficult for the company to meet and continue trading. Neither Frank nor Mitchell were cross-examined.
The Prosecutor directed my attention to some of the documents and noted that the defendant still possesses assets that could be liquidated to assist with the payment of a fine. I note these assets are plant and machinery. Whilst I accept the Prosecutor's submission, to my mind to expect the defendant to sell its cranes and machinery may well inhibit any work that they need to do to earn any income at all.
On the basis of the totality of the documents before me, I will allow the defendants some leniency, but the objective seriousness of the accident and the risks involved necessitate a significant fine be imposed.
The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ).
The Court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor's costs when considering any monetary penalty to be imposed on the defendants, particularly in circumstances where there is evidence of a limited capacity to pay a fine, and I have done so. Costs payable to the prosecutor are the 'normal' rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga.
The Court can also have regard to the defendant's own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].

Penalty

I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the offence is $400,000.00 and that will be reduced by 25% to reflect the plea of guilty. 3. That results in a fine of $300,000.00. 4. In exercising my discretion under s 6 of the Fines Act 1996 (NSW), that fine is to be reduced by 50%. 5. Accordingly, I order the defendant to pay a fine of $150,000.00. 6. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 7. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs agreed in the sum of $30,000.00.

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: 01 September 2023

Safety Regulation 2017(NSW)

Work NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v McInerney Enterprises Pty Ltd; SafeWork NSW v Taylor McInerney [2023] NSWDC 56 SafeWork NSW v Technical Works Pty Ltd [2022] NSWDC 454 SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 182 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v R (No 2) (1988) 164 CLR 465 WorkCover Authority (NSW) (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 Texts Cited: Australian Standard 2550.1-2011 Cranes, hoists and winches (Safe use) SafeWork Australia 'General Guide for Cranes' dated December 2015 SafeWork Australia General Guide for Cranes, December 2015 SafeWork NSW Code of Practice 'Managing the risks of plant in the workplace' dated July 2014 WorkCover NSW Code of Practice: Construction Work dated July 2014 Category: Sentence Parties: SafeWork NSW (Prosecutor) Universal Propping & Supports Pty Ltd (Defendant) Representation: Counsel: Mr N Read (for the Prosecutor) Mr J Peluso (for the Defendant)

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