SafeWork (NSW) v Romanous Contractors; SafeWork [2016] NSWDC 48 | Case summary

SafeWork (NSW) v Romanous Contractors; SafeWork [2016] NSWDC 48 | Case summary | Zoe

Facts

The parties presented an Agreed Statement of Facts that can be summarised as follows.
Romanous Contractors conducted a business in construction and construction management. At the time of the offence Romanous Contractors was the principal contractor on a multi-storey retail construction being undertaken at 84D Roberts Avenue, Mortdale (the premises). Romanous Developments Pty Ltd (Romanous Developments), the owner and developer, had authorised Romanous Contractors to have responsibility for the control and management of the premises. Romanous Contractors began work at the premises in around May 2012
Mr Romanous was the sole director and shareholder of Romanous Contractors and was the Site Manager at the premises. Mr Romanous attended the premises daily and supervised subcontractors engaged by Romanous Contractors.
Mr Czyz was a sole trader operating a bricklaying business under the name Wojciech Czyz Bricklaying (WC Bricklaying). Romanous Contractors had engaged Mr Czyz to perform masonry block laying and labouring duties at the premises. Mr Czyz began this work in around May 2012 and reported to Mr Romanous.
Romanous Contractors employed approximately 6 workers at the premises and engaged a number of sub-contractors including WC Bricklaying and Quickform Pty Ltd.
In around August or September 2012 a concrete slab was poured on the second level of the premises and included a penetration of approximately 1 metre by 1 metre on the north-western side of the slab which was designed to accommodate a smoke vent. The penetration was approximately 5.1metres above the level below. At this time there was formwork in place, however the formwork was removed approximately 1 week prior to the incident occurring, creating a hole under the penetration.
On or about 14 September 2012 prior to the formwork beneath the penetration being removed, Mr Romanous instructed Mr Adams to cover the penetration with plywood and bolt it to the concrete slab. Mr Adams covered the penetration with plywood, however did not bolt it to the slab. At some time after 5pm Mr Adams informed Mr Romanous that his tools had been stolen and he was unable to bolt the plywood down. Mr Romanous instructed Mr Adams to nail down the plywood until another drill could be obtained, and Mr Adams responded that he would do so the following morning prior to other workers coming onto the site. Mr Adams had not stripped or covered a penetration prior to the incident.
The following morning Mr Adams saw that two timber planks owned by Mr Czyz had been placed underneath the plywood covering the penetration. Mr Adams did not check whether the penetration had been covered securely. Mr Romanous did not check that the plywood had been secured to the slab.
At approximately 7am on 20 September 2012 Mr Czyz and a number of bricklayers commenced work at the premises. Mr Romanous arrived at around 7.10-7.15am to inspect the site and instruct workers. Mr Romanous spoke with Mr Czyz at approximately 8am and provided him with instructions before leaving the premises at approximately 8.10am.
At approximately 8.25am the bricklayers saw Mr Czyz driving a forklift on the north east corner of the slab. Mr Czyz was then seen by Mr Hanna near the penetration, but disappeared from view shortly after. Mr Hanna went to the area where he had seen Mr Czyz. Mr Hanna observed the penetration to be only partially covered by plywood and Mr Czyz lying directly beneath the penetration on the concrete floor. Mr Hanna called out to other co-workers who went to Mr Czyz to render assistance.
Mr Czyz sustained fatal head injuries and died at the scene.
At about 11.30am Inspector Sandra McCarthy inspected the premises. Inspector McCarthy observed a plank of wood positioned across the penetration with a piece of plywood resting on top partially covering the penetration. Neither had been nailed down or otherwise secured. A Nissan forklift was seen to be parked approximately 4 metres from the penetration.
Romanous Contractors had a Site Safety Management Plan and OHSE Management Plan in place prior to the incident, however these plans did not address the risk of a person falling through an unsecured penetration. There were no other procedures or systems in place to address this risk. There were no procedures in place to record planned or actual control measures for penetrations at the premises.
At the time of the incident the National Code of Practice for the Prevention of Falls in General Construction and the WorkCover Code of Practice for Managing the Risk of Falls at Workplaces both provided that holes in floors should be made safe immediately after they are formed and should be guarded with material strong enough to prevent objects or persons falling through.
Clause 299 of the Work Health and Safety Regulation 2011 (the Regulations) requires that a Safe Work Method Statement (SWMS) be developed before undertaking high risk construction work. The work being controlled by Romanous Contractors was high risk construction work because it involved a risk of a person falling more than 2 metres: clause 291 of the Regulations. Romanous Contractors did not ensure that a written SWMS was in place for working near unsecured penetrations prior to commencing work at the premises.
Prior to commencing work at the premises WC Bricklaying submitted a SWMS for Masonry Works and a Hazard Management Design Risk Assessment. QuickForm submitted a SWMS for Formwork. These documents did not address the risks associated with working near penetrations, or checking that penetrations were securely covered. Romanous Contractors did not have a system in place for reviewing SWMS and risk assessments submitted to it prior to working near penetrations.
Romanous Contractors did not inform workers at the premises of the existence of penetrations on the second floor and a number of workers were unaware of the penetrations prior to the incident.
Following the incident Romanous Contractors implemented a number of safety measures including among other things; 1. Reinstating false-work frames under the penetration; 2. Bolting a plywood cover over the penetration and installing guardrails around the penetration; 3. Establishing formal hazard reporting; 4. Holding regular toolbox talks; 5. Engaging a safety coordinator; and 6. Having a safety auditor consulted to prepare an audit to report on the safety hazards at the premises.

[4]

The Offenders' Evidence

The offenders relied on two affidavits of Allen Romanous sworn 18 March 2015 (the first affidavit) and 15 March 2016 (the second affidavit). Mr Romanous was present in court at the sentence hearing and was cross-examined.
Mr Romanous holds a Bachelor of Building and Construction Management from the University of Technology Sydney and has been working in the construction industry since around 1990.
In about 1996, Mr Romanous began working for his father's company Romanous Construction Pty Ltd (Romanous Construction) and continued in that employment until around 2009. During this time Mr Romanous worked on a number of major projects including a large commercial development at Hurstville, as well as apartments and units throughout Sydney. Mr Romanous deposed that by 2009 he was working as a site supervisor/manager on a large project for Romanous Construction and was responsible for managing occupational health and safety issues in this role.
Romanous Contractors was established on 1 March 2010 and was licensed to build domestic, industrial and commercial premises in New South Wales.
Mr Romanous deposed that he had known the deceased for approximately 20 years when the Mortdale project commenced and that they socialised weekly. Mr Romanous gave the deceased responsibility for everything to do with masonry blocks on the premises.
Mr Romanous was the health and safety officer on the premises between 1 April 2012 and 30 June 2013.
When any sub-contractor came on site for the first time Mr Romanous would carry out a site induction. This site induction would consist of a sit down meeting to discuss site safety issues and procedures, including going through the Site Safety Management Plan. Following the meeting workers would sign a Site Induction Form, the Induction Register and have their white card numbers recorded. Mr Romanous believed that the deceased and his employees were inducted on 11 April 2012.
Daily toolbox talks were held by Mr Romanous with all people who would be working at the premises on that day.
Mr Romanous deposed that he would identify penetrations, assess the risk presented and identify control measures to address the risk. When a new penetration was created he would direct a worker to cover the penetration, usually with plywood secured by nails.
The slab was not originally designed to have penetrations, however the design was modified a few days prior to the concrete pour to include 6 penetrations of approximately 1 metre by 1 metre. The concrete slab was poured on 21 August 2012, and the formwork stayed in place until about 14 September 2012. Removal of the formwork created the penetration.
In addition to the steps set out in the Agreed Facts, Mr Romanous deposed that on the morning of 18 September 2012 he instructed Mr Czyz to erect a pedestrian crash barrier around the penetration as it was his belief that a plywood cover would not be sufficiently strong to withstand the weight of the Nissan forklift. The barriers were about 2 metres long, 1 metre high and weighed approximately 1 tonne when filled with water.
Mr Romanous deposed that on the morning of the incident he noticed that Mr Czyz had not erected barriers as instructed. At about 7:45 Mr Romanous instructed Mr Czyz to erect a number of barriers on the slab, including around the penetration, and that the forklift was not to be used until those instructions had been complied with.
Mr Romanous gave evidence in his affidavit that prior to the incident involving Mr Czyz, there had only been two other minor safety incidents on sites at which he was site manager. There had not been any safety incidents on Romanous Contractors projects or at the premises.
Following the incident penetrations were securely covered, sign posted and mesh was used where possible.
Mr Romanous deposed that he was devastated by the death of Mr Czyz. Mr Romanous said in his affidavit that he is still close to the family of Mr Czyz and assisted them in organising Mr Czyz's business affairs following his death. Mr Romanous offered the family financial assistance, however this offer was declined. Mr Romanous spent the first anniversary of Mr Czyz's death with his family and went to the cemetery with colleagues on the second anniversary.
Romanous Contractors has not taken on any new work since completing the Project. Mr Romanous deposed that he has been suffering anxiety and depression since shortly after the death of Mr Czyz and has sought help from his GP in this respect.
Romanous Contractors has ceased trading. Mr Romanous deposed that he had no intention to return to work in the construction industry in the near future and was not in any form of paid employment in 2013, causing him to encounter financial difficulties.
In his 15 March 2016 affidavit Mr Romanous deposed that he is still unable to carry out full-time work responsibilities, but does work 1 day per week for Siesta Inn Pty Ltd (Siesta Inn) and holds shares in that company. Mr Romanous is living with family and has credit card debt of approximately $34,812.
Romanous Contractors currently owes the Australian Taxation Office $30,824.
Romanous Construction has lent money to Mr Romanous to pay for legal fees in these proceedings and is currently owed $70,685.

[6]

The Mesh Issue

One method of eliminating the risk posed by the penetration was to embed mesh into the formwork before pouring the concrete. The result being that when the formwork was removed, a person could not fall through the penetration. The mesh is removed at a later time when the ducting is installed through the penetration. After this point the penetration must be sealed with a plywood cover, because the mesh cannot be reinstated once removed.
Mr Romanous deposed that it was not reasonably practicable to install mesh in the penetration because it had anchor points on it to enable the stressing of steel cables laid in the concrete after it was poured. A process known as post-tensioning.
The Prosecution tendered an expert report of Christopher Turner dated 4 March 2016. Mr Turner was present in court at the sentencing hearing and was cross-examined. In his report Mr Turner noted that while eliminating the risk of falling through a penetration by the installation of mesh is preferable, it is often not reasonably practicable, including where it is intended to carry out post-tensioning. Mr Turner did not visit the site and was reliant on analysing a few photos taken by an Inspector. He agreed that it was possible that the marks on the opening of one side of the penetration could have been consistent with where post-tensioning anchors had been. He also agreed that covering the penetration with plywood that was secured to the concrete would have complied with both Codes to eliminate the risk.
I am not satisfied beyond reasonable doubt that it was reasonably practicable to use mesh in order to eliminate the risk of falling through a penetration. The penetrations had only been incorporated into the plan a few days before the slab was poured which may not have allowed a sufficient amount of time for mesh to be obtained. The mesh was always going to have to be removed in order for ducting to be installed which would then create the risk of falling through the penetration in the future. The installation of a plywood cover that was properly secured would have eliminated the risk or minimised it so that it was present for a very short time.

[7]

Prior Safety Incidents

The prosecution led evidence to rebut the evidence of Mr Romanous in [181] of his first affidavit that there had been only two other minor safety related incidents on the sites where he had previously worked as site manager. [1] Those incidents resulted in one worker sustaining a broken jaw and another suffering a broken ankle.
The Prosecution tendered a Statement of Inspector Stephen Cooper dated 5 August 2015. Inspector Cooper was cross-examined before me on 16 March 2016.
Inspector Cooper's Statement was prepared in relation to visits made by Inspector Cooper to 9 The Avenue, Hurstville (the Hurstville site) between 17 October 2006 and 30 April 2007. The principal contractor of the site was Romanous Construction and Mr Romanous identified himself to Inspector Cooper as the construction manager. Inspector Cooper noted multiple floor penetrations and voids with no fall protection, gaps between scaffolding and the building, and unprotected stair landings.
Inspector Cooper issued Prohibition and Improvement notices to Romanous Construction regarding the fall hazards identified. These notices were served on Mr Romanous. These notices were not immediately complied with. Further notices were issued on subsequent visits which were also not immediately complied with. Inspector Cooper was required to make a number of visits to the Hurstville site during which he would speak with Mr Romanous about fall hazards and the need to provide a safe system of work.
The Prosecution also tendered a Statement of Inspector Phillip May dated 4 August 2015. Inspector May was cross-examined before me on 16 March 2016.
Inspector May visited the Hurstville site on a number of occasions between 20 December 2006 and 9 February 2007. On his 20 December 2006 visit, Inspector May noted inadequate fall and edge protection around voids, and a lack of edge protection in a number of areas. Inspector May issued a number of Improvement Notices which were served upon Mr Romanous. These notices were not immediately complied with. Further notices were issued during subsequent visits which were also not immediately complied with.
The Prosecution tendered a Statement of Mr Romanous dated 21 January 2009 which was prepared in relation to a potential claim of a worker on the Hurstville site against Romanous Constructions for an injury sustained whilst working at the Hurstville site. In this statement Mr Romanous stated that he would randomly check that penetrations had been securely covered to ensure the safety of employees.
The evidence led in [181] of the first affidavit is relevant to whether Mr Romanous was a person of good character. Mr Romanous sought to prove that he was a person of good character because he had in the past demonstrated himself to be a professional and safe site manager. This was a matter to be taken into account pursuant to section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999.
The prosecution was entitled to call evidence to rebut the evidence led by the offender.
I am not satisfied on the balance of probabilities that Mr Romanus has established that he is entitled to have the lack of "safety incidents" taken into account as a mitigating factor in the present sentencing exercise for the following reasons.
First his description of "2 minor safety incidents" is apt to mislead. In both instances a worker suffered injury. Safety cannot be ensured when a risk to safety is present. Safety incidents often occur without the infliction of injury to a worker. Second, the evidence led by the prosecution details Mr Romanous' prior contact with the prosecutor where safety of the workers for whom he was responsible was actually put at risk in a similar fashion to the incident the subject of these proceedings. The evidence demonstrates that risk to safety of a similar nature to the subject matter of these proceedings has been present more often when he was a site manager than he stated in [181] of his first affidavit.
By reference to the fact that he has no prior convictions Mr Romanous is generally considered to be a person of good character and will be entitled to a reduction in sentence by reference to that, but not otherwise.

[8]

Mr Romanous' credit

The prosecution challenged the veracity of Mr Romanous' evidence.
In response to a request from two Inspectors, on two separate occasions, after the incident, Mr Romanous produced an 'OHSE Management Plan' of Romanous Contractors dated 27 February 2012 relating to the work at the site. The document identified an employee, John Mouyat, as the safety officer for the site.
Mr Mouyat was called to give evidence on 16 March 2016 and was cross-examined. He gave evidence that he was not appointed the safety officer for the site until 20 September 2012. He told the Inspectors investigating the incident about that in a record of interview that took place on 20 November 2012. Before he was appointed it was his understanding that there was no safety officer appointed.
In cross-examination Mr Romanous was asked if the OHSE Management Plan was created after the incident. He denied that proposition. He stated that the reference to Mr Mouyat as safety officer in the document was incorrect. He stated that it may have been intended at the time of preparation of the document that Mr Mouyat would take that role but for some reason he was not appointed until later. He gave evidence that he filled that role in February 2012, until when Mr Mouyat was appointed.
It was submitted by the prosecution that I should find that Mr Romanous was not telling the truth on this issue. I am not satisfied beyond reasonable doubt that he gave false evidence on this point.
The prosecution submitted that I should not accept Mr Romanous' evidence about the directions he gave to Mr Czyz on the day of the incident. The prosecution did not put to Mr Romanous in cross-examination either that he did not give the alleged directions to Mr Czyz or that what he deposed to about giving those directions was untrue. Whilst it is trite to say that this type of evidence should be carefully scrutinised [2] , because what the deceased was told cannot be tested, the prosecution did not give the opportunity to Mr Romanous to respond in cross-examination and therefore to reject his evidence on the point would be substantially unfair to him.

[9]

Objective Seriousness

The proportionality principle requires that a sentence should neither exceed nor be less that the gravity of the crime having regard to the objective circumstances: Veen v R (No 2) (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) 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) 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].
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 relevant to the gravity of the offence: Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.
The actions of Mr Romanous were relevant to the objective seriousness of the offence committed by him and the offence committed by Romanous Contractors.
The risk presented by an unprotected penetration was obvious. Mr Romanous took some inadequate steps to have the penetration sealed by Mr Adams. After Mr Adams' initial effort, Mr Romanous knew that the penetration was not adequately secured.
Mr Romanous had actual knowledge from his prior interactions with the prosecutor about the danger presented by unguarded penetrations and the steps that should be taken to eliminate or minimise the risk of falling through an unguarded penetration. Mr Romanous demonstrated his awareness of the risks posed by unguarded penetrations in his 21 January 2009 statement and his prior behaviour of checking that penetrations had been properly secured in order to minimise the risk.
There were very simple measures available to minimise the risk, and these measures were known by Mr Romanous. Had Mr Romanous checked that the plywood had been secured by Mr Adams, he would have discovered that the penetration was not adequately guarded and remedial action could have been taken.
The death of Mr Czyz is a matter relevant to the gravity of the offence.
Romanous Constractors failed to develop a written SWMS to identify the risk and implement control measures. The Project involved high risk construction work and a written SWMS was required by clause 299 of the Work Health and Safety Regulations 2011. The system adopted by the offenders was ad hoc, unplanned and wholly inadequate.
On any given day 15 to 20 people may be working at the site, and at least 4 other people were working on the slab on the date of the incident. At least 4 workers were exposed to the risk.
The risk was present on site for approximately one week.
The conduct of the offenders fell well short of that expected from responsible persons involved in high risk constriction activity.
The offences fall slightly above the middle range of objective seriousness.

[12]

Mitigating Factors

Neither Romanous Contractors nor Mr Romanous have any record of prior convictions: section 21A(2)(e) Crimes (Sentencing Procedure) Act 1999. This factor should be assessed by reference to the fact that Romanous Contractors had only been in operation for approximately 2.5 years at the date of the incident. Mr Romanous was 35 years of age at the date of the incident.
Romanous Contractors is unlikely to re-offend: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. I am satisfied on the balance of probabilities that it is no longer trading. It owes money to the ATO and has no income. It is likely to be wound up at the conclusion of theses proceedings.
Both offenders entered a plea of guilty: sections 21(3)(k), 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of the plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32].
The proceedings against both offenders were commenced by Summons filed on 23 September 2013. The proceedings were first mentioned on 4 November 2013 and were adjourned on 4 separate occasions before being listed for mention on 5 May 2014. On 5 May 2014 Mr Romanous entered a plea of not guilty and his matter was set down for hearing on 18-20 August 2014. Romanous Contactors entered a plea of guilty on that date and its matter was listed to be dealt with following Mr Romanous' matter.
On 18 August 2014 the hearing was vacated and relisted for 23-27 March 2015. On 23 March 2015, the first day of the hearing, Mr Romanous changed his plea to a plea of guilty. A sentence date was fixed for 10 August 2015. That sentence date was vacated on 10 August 2015, an amended summons was filed and the matter was relisted for sentence on 16 March 2016, when the matter came before me.
The appropriate discount for Mr Romanous' plea is 5%.
The appropriate discount for Romanous Contractors' plea is 15%.

[13]

Capacity to pay a fine

I have had regard to section 6 the Fines Act 1996.
The Court is required to have regard to this provision 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: Jahandideh v R [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.
Mr Romanous gave evidence that in March 2015 he was a director of Romanous Contractors and was working managing a hotel run by Siesta Inn. Mr Romanous was a director of Siesta Inn for a period of time and resigned as a director with the intention of going on an overseas holiday for an extended period, although he did not actually do so.
Mr Romanous gave evidence that he has not become a director of Siesta Inn again as he is planning on going overseas at the conclusion of these proceedings and will borrow money from family or friends in order to do so.
Siesta Inn operates an accommodation venue in Sydney. The evidence does not disclose the hours that Mr Romanus works for Siesta Inn. In the 2014/2015 financial year Mr Romanous earned approximately $26,000 from his employment with Siesta Inn. Mr Romanous gave evidence that he received both cash and electronic payments from Siesta Inn, and that Siesta Inn would pay bills on his behalf from time to time.
Mr Romanous had control of, and was a signatory for the bank account of Siesta Inn. Mr Romanous deposed that he occasionally bought things for Siesta Inn on his personal credit card and then reimbursed himself from Siesta Inn's bank account.
Mr Romanous agreed that in August 2012 he had nearly $29 000 in credit card debt and it he accepted that he had always arranged his finances by running his credit card at close to the maximum limit. He agreed that his current credit card debt is not attributable to an inability to work following the incident.
Mr Romanous gave evidence that he does not have a written loan agreement with Romanous Construction and that he does not know when he will repay them. He deposed that Romanous Construction will not lend him any more money as they are currently in dispute over a civil case.
Mr Romanous gave evidence that there has been no communication with the ATO about the debt owed by Romanous Contractors and that he was unsure how this debt would be paid off.
Mr Romanous made a deliberate decision for Romanous Contractors to cease trading and for him not to undertake any work due to these proceedings and the consequences that may flow from them: [204]-[205] of his first affidavit.
Mr Romanous states that he has been suffering from anxiety and depression following Mr Czyz's death and from headaches after falling off a ladder in 2014.
The evidence presented on behalf of the offenders as to their respective capacity to pay is seriously inadequate. As a minimum I would have expected the offenders to present a schedule of assets and liabilities and a schedule of income and expenditure, supported by objective documentation ordinarily available to them, including bank statements, tax returns, statements of earnings and the like. I was also unimpressed with the lack of evidence about the financial arrangements relating to the cessation of trading by the company. In my view this is evidence that was reasonably and practicably available to the Court if the offenders had chosen to present it.
The offenders have not discharged their evidentiary onus on this issue. The evidence given by Mr Romanous in cross-examination did not assist. He was unable to satisfactorily explain any of the bank statements he was taken to, notwithstanding that he was the person who operated those accounts. His evidence on the financial relationship between the various family companies, how he was paid by those companies and the other support he was provided by his family was evasive. I do not accept Mr Romanous' evidence on this issue.

SafeWork (NSW) v Romanous Contractors; SafeWork

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Cases Cited (12)

Cited By (3)