WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El... [2007] NSWIRComm 169 | Case summary

WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El... [2007] NSWIRComm 169 | Case summary | Zoe

[11]

1 Both defendants have entered a plea of not guilty to an offence alleged pursuant to s 9 of the Occupational Health and Safety Act 2000 (the 2000 Act). 2 The defendants are brothers and business partners operating a cement rendering business registered as El Dadoun, Ghaleb and Fawaz (also known as Sydney G & F El Dadoun Cement Rendering) referred to hereafter as the Dadoun partnership. 3 The offences arise from workplace injuries sustained on 1 October 2003 by Mr Omar El Mahrbani, a self-employed cement renderer, at a residential development site located at 2 - 6 Anglo Square, Carlton (the site). On that day, while undertaking cement rendering work on the upstairs balcony of a unit on the site, Mr El Mahrbani lost his balance and fell some 4.46 metres. As a result of the fall, he suffered head injuries, fractures to his left wrist and elbow, spinal and neck injuries and was unable to work for a number of months. 4 The work being undertaken by Mr El Mahrbani was part of a construction project consisting of nine townhouses. The principal contractor for the project was Forcon Pty Limited (Forcon). Mr Jeffrey Forsyth is the Managing Director and sole shareholder of Forcon. Forcon and Mr Forsyth have already entered pleas of guilty to respective offences arising under s 8(2) of the Occupational Health and Safety Act 2000 in relation to Mr El Mahrbani's accident and been dealt with by the Court: See WorkCover Authority of New South Wales (Inspector Macready) v Forcon Pty Limited and anor (2007) NSWIRComm 132 given on 1 June last. 5 It is part of the prosecutor's case in these proceedings that Forcon sub-contracted the internal and external cement rendering work for the project to the Dadoun partnership. Further, it is alleged, as part of their undertaking, the Dadoun partnership engaged the services of Mr El Mahrbani to perform some of the work for them. That fact is disputed by the Dadoun partnership who assert that at all times Mr El Mahrbani was working directly for Forcon as an independent contractor. 6 The determination of that issue is central to grounding the liability of the Dadoun brothers for the offence alleged with respect to both of them. 7 As partners in their cement rendering business, the offence alleged under s 9 of the Act is in identical terms. It is alleged that, respectively, on 1 October 2003, both defendants, as partners in the Dadoun partnership: Did fail to ensure that people other than his employees and including Omar El Mahrbani, a self employed cement renderer ('the worker'), were not exposed to risks to their health and safety arising from the conduct of his undertaking, namely, cement rendering work incidental to the construction of townhouses at the site, while they were at his place of work namely the site, contrary to s 9 of the Occupational Health and Safety Act 2000. 8 The particulars of each offence are in similar terms as follows: [1] The defendant was a partner in the Dadoun business partnership, which partnership on or about 5 May 2003 contracted with the principal contractor at the site Forcon Pty Limited (ACN 001 863 190) ('Forcon') to carry out cement rendering work incidental to the construction by Forcon of 9 residential townhouse units at the site.

[13]

[3] At about 1.00 pm on 1 October 2003 the worker was conducting cement rendering work at the site pursuant to Dadoun's undertaking pursuant to its contract at the site. He was in the process of rendering a straight edge above the top of a sliding door on the southern end of the balcony of unit 7 at the site when he slipped and fell from the balcony on to a dirt driveway a distance of approximately 4.46 metres below. [4] As a consequence of the fall the worker sustained a number of injuries including fractures to both his left wrist and elbow, injuries to his head, left leg, lower spine and neck, which injuries prevented the worker resuming his normal work for more than 7 days. [5] At the time the worker fell there were no proper measures in place on the balcony of Unit 7 at the site to control risks associated with falls from such a height. [6] The worker's fall from the balcony resulted from the defendant's failure to maintain a safe system with respect to the conduct of the rendering work in that: (a) There was no stable and securely fenced work platform in situ to enable the worker to perform the work safely. (b) It failed to ensure that the conduct of the work was in accordance with the safe work method statement in force pursuant to Dadoun's contract with Forcon. (c) The defendant failed to properly assess the risk in relation to the work being performed and to identify the hazards associated with the performance of such work and to develop an appropriate control measure for its conduct. (d) The defendant failed to ensure that the requirements of the Occupational Health and Safety Regulation 2001, clause 56 were complied with in respect of the conduct of work which involved a risk of a fall from a height of more than 2 metres. (7) The defendant failed to provide appropriate information, instruction, training and supervision in relation to the conduct of work involving the rendering of the straight edge above the top of the sliding door when it involved the worker standing on a platform approximately 500mm above the concrete balcony floor such as was necessary to ensure that risks to the health and safety of the worker were avoided. Relevant principles

[15]

In their context and purpose, there would appear to be no reason to make any implication that the words `to ensure' are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain. 10 While the above decision was reflective of the provisions of the Occupational Health and Safety Act 1983, the legislative approach in the Occupational Health and Safety Act 2000 is identical. 11 The absolute nature of the duty imposed does not relieve the prosecution of the necessity for it to prove the identified failure beyond reasonable doubt: See State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 where the Full Bench stated in relation to s15(1) of the 1983 Act but equally applicable to s 9 of the 2000 Act: Although s 15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v Broken Hill Proprietary Co Ltd (1988) (unreported) to the effect that 'it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety. 12 As the above extract emphasises, not only is the prosecution put to proof of the offence and all its elements but it must establish a causal connection between the conduct of the defendant giving rise to the breach and the alleged risk to safety arising. 13 In relation to the offence alleged with respect to the Dadoun partnership under s 9 of the 2000 Act, the elements of the respective offences are: (i) each defendant was a self employed person; (ii) there were persons, not employees, exposed to risks to their health or safety; (iii) the risk arose from the conduct of the defendants' undertaking; (iv) the exposure to risk was at the defendants' place of work. 14 Further, it is trite law but important to note that the phrase 'beyond reasonable doubt' requires no elaboration or explanation beyond stating that it is the task of the prosecution to establish the elements of the offence to that standard and, where any doubt exists, the defendant is entitled to the benefit of that doubt. 15 What is required is a risk to safety, not an actual incident causing an injury: See Drake Personnel Limited t/as Drake Industrial v WorkCover Authority of NSW (1999) 90 IR 432 at 452 where it is stated: The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

[26]

23 As the agreed facts make clear, the Dadoun partnership had an agreement with Forcon Pty Limited (Forcon) to carry out cement rendering work at Forcon's townhouse development site. That agreement was for internal and external cement rendering to be undertaken at an agreed contract rate of $20.90 per square metre for external work and $12.10 per square metre for internal work. 24 That agreement took effect, at the very latest, on or about 5 May 2003. The evidence disclosed that around that time Mr Dean, Construction Manager on behalf of Forcon, visited Mr Ghaleb El Dadoun at his home in order to obtain his signature, on behalf of the partnership, to three documents that, taken together, are said to reflect the totality of the agreement between the Dadoun partnership and Forcon. The three documents are: (i) the subcontract agreement between the Dadoun partnership and Forcon; (ii) A Work Method Statement (WMS) relevant to the subcontract agreement; (iii) A Site Specific Induction Statement (SSIS) relevant to the subcontract agreement. 25 There is dispute between the parties in relation to certain aspects of the above documents. 26 To start, the defendants assert that the Site Specific Induction Statement (SSIS) was never provided to them by Forcon or signed on behalf of the Dadoun partnership. Further, the defendants point to irregularities in the copy of the agreement and the WMS held by Forcon when compared with the originals of those documents held by the defendants. I will return to the latter issue in due course later in this judgment. 27 The copy of the SSIS produced as part of the prosecution brief was a photocopy (exhibit 8) produced by Forcon. It purports to have the signature of Mr Ghaleb El Dadoun entered on the second page. Mr Ghaleb El Dadoun disputes that signature and says it is not his. 28 There are two evidentiary matters that weigh somewhat against Mr Ghaleb El Dadoun on this issue. The first is that the signature on the copy of the SSIS that is before the Court looks, to the naked eye, similar to his signature that appears on the subcontract agreement as well as the Work Method Statement (WMS) that he acknowledges is his. It must be said, however, that the quality of the copy, as far as the signature is concerned, is poor. 29 No expert evidence was adduced to verify, or otherwise, that the signature on the copy of the SSIS was Mr Ghaleb El Dadoun's. 30 Second, in his interview with Inspector Macready on 20 May 2004, Mr Ghaleb El Dadoun was questioned about the SSIS in the following terms: Q112: I am now going to show you a document called "Site Specific Induction For: 2-6 Anglo Sq Carlton" dated 30/4/04, marked for identification (DMAC5). Have you seen this document before? A: I recognise my signature, but I cannot remember the document. Q113: Can you describe to me the purpose of this document?

[35]

A. I couldn't see it clearly. I am not the Inspector to be forging signature, and if he have the original you show it to me, if you have? 33 Certainly, Mr El Dadoun's evidence on this matter was contradictory. On one view, it is odd that Mr El Dadoun was so insistent he had not signed the SSIS as there is no dispute by him he did have a subcontract agreement with Forcon to do work at their site. He had signed the front page of that subcontract. He had also signed the WMS that accompanied it. 34 Ultimately, it seems to me, nothing much turns on it. Having had the opportunity to peruse the copy of the SSIS that is exhibit 8, it has all the hallmarks of being a pro forma document prepared by the Housing Industry Association for use by employers or principal contractors in the housing industry. A failure to sign such a document does not invoke automatic liability under the Occupational Health and Safety Act - nor does it allow a subcontractor to avoid the absolute liability to undertake work absent risks to safety that the Occupational Health and Safety Act requires. 35 If anything, the dispute about Mr El Dadoun's signature on the SSIS goes to the respective credibility of Mr Ghaleb El Dadoun and representatives of Forcon concerning the documents that evidenced the agreement between them. On that issue, the evidence is, in many respects, equivocal. 36 It was Mr Dean on behalf of Forcon who was responsible for negotiating the subcontract agreement with the Dadoun partnership. His task, amongst others, was to explain the relevant details of the agreement together with the WMS and the SSIS and to have the documents signed on behalf of the Dadoun partnership. 37 According to Mr Dean, when he visited Mr Ghaleb El Dadoun at his home on or about 5 May 2003, he 'believed' he gave him the three documents. That is, the subcontract agreement, the WMS and the SSIS. When cross examined specifically as to the SSIS, his evidence was: Q. Sir, is it possible that on the day that you went and saw the El Dadouns, on that day in early May 2003, that you actually forgot the Site Specific Induction?

[58]

Q. And when you came back he had signed? A. I didn't check to see if he had signed it, because my husband told me everything's finished, but during that time, Chris must have told my husband to sign when I wasn't in the room. 42 I accept the overall veracity of Mrs El Dadoun as to the sequence of events that occurred during Mr Dean's visit. I am satisfied that Mr Dean left the originals of the subcontract agreement and the WMS with the El Dadouns when he visited them on 5 May 2003 and that Mrs El Dadoun subsequently faxed signed and completed copies of those documents to him on or about 19 June 2003. I am not so satisfied in relation to the SSIS. 43 In these proceedings, the original subcontract agreement and WMS were produced by the defendants. The copies relied upon by the prosecution were produced by Forcon as part of the investigations by Inspector Macready on behalf of WorkCover. 44 Curiously, when reference is made to the originals of the subcontract agreement and the WMS, an asterisk appears in blue pen at certain locations on both documents, including where Mr Ghaleb El Dadoun signed. On the photocopy of the SSIS, no such asterisks appear on either page. 45 In my view, given the evidence of Mr Dean and Mrs El Dadoun that asterisks were placed at relevant places on the documents indicating where Mr El Dadoun was to sign or complete, that is an inconsistency of some relevance when considered together with the absence of an original SSIS. 46 In considering all of the evidence on this issue, I am not satisfied beyond reasonable doubt that Mr Ghaleb El Dadoun was given and did sign the SSIS in the circumstances as asserted by the prosecution. 47 The dispute over the SSIS is not the only issue between the parties concerning the documentation signed between them. In fact, the issue raised by the defendants relating to the documentation between the defendants and Forcon is that it is evidence of 'impropriety or sloppiness' in the way in which Forcon contracted with non-English speaking workers, including the El Dadouns and Mr El Mahrbani. That such 'impropriety or sloppiness' existed, it was contended, was a relevant consideration when weighing up that aspect of the prosecution's case that asserted Forcon always had written agreements with it's subcontractors. 48 Certainly, one of the indicia relied upon by the prosecution in establishing the defendants' undertaking included the work performed by Mr El Mahrbani was the absence of any written agreement between Forcon and Mr El Mahrbani. Given Forcon's policy of having written agreements with it's subcontractors, that fact, the prosecution submitted, supported a conclusion that the work performed by Mr El Mahrbani was done pursuant to the defendants' written agreement with Forcon and was part of the defendants' undertaking. 49 On behalf of the defendants, it was said the evidence that went to Forcon's 'impropriety or sloppiness' in attending to relevant contractual documentation with the defendants raised the inference that such an approach was common in Forcon's dealings with subcontractors and raised the likelihood that Forcon did engage Mr El Mahrbani directly but simply failed to ensure the relevant contractual documentation was effected. 50 It is indisputable that Forcon's approach to dealing with it's administrative responsibilities of finalising written contractual agreements with the defendants and, on Mr Dean's evidence, with it's subcontractors generally, was distinctly haphazard. For example, in addition to my finding in relation to the SSIS, the following inconsistencies emerged in relation to the subcontract agreement and the WMS between Forcon and the Dadoun partnership: (i) on the copy of the subcontract agreement produced by Forcon and tendered by the prosecution (exhibit 7), Mr El Dadoun's signature appears on the second page at the bottom right hand side of the page and Mr Dean's signature appears at the bottom left hand side of that page. On the original of the subcontract agreement produced by the defendants (exhibit 10) Mr Dean's signature appears at the bottom right hand side of the page. Mr El Dadoun's signature does not appear at all on the second page. (ii) On the copy of the WMS produced by Forcon and tendered by the prosecution (exhibit 8A) the first page identifies the defendants as 'Sydney G & F El Dadoun Cement Rendering'. The first page of the original WMS produced by the defendants (exhibit 19) identifies the defendants as 'Ghaleb and Fawaz'. A further copy of the WMS (exhibit 9) does likewise. 51 On behalf of Forcon, the obvious inconsistencies between the documents was explained by Mr Dean as follows: A. The only explanation I can give is, when preparing all these documents, not just for this but also subcontractor agreements for various tradesmen, subcontractors, we usually issue them original documents before they start work. When they - and then we ask for, obviously, them back signed, dated, all the details supplied. If we haven't received these documents back in the office by the time they start, or sometimes we don't see them again, we get half of them back and not the other, I would, before they start work, I would draw up a certain section which requires the signature or, you know, just anything that they haven't supplied and get them to take it outside and leave with our on-site staff and get them to fill in the information that they're supposed to whilst on site.

[61]

Q. And which documents, do you recall, you had to chase up? A. I believe it was the conditions of the subcontract agreement, and it looks like the work method statement. 52 As the above extract evidences, Mr Dean had a tendency, on occasions, to answer questions on the basis of what he believed was the factual situation rather than asserting a clear recollection of the fact in issue. Such an approach raises the inference that Mr Dean had no direct recollection of the fact in issue and was simply asserting as to his general belief. 53 Notwithstanding that, Mr Dean's explanation as to how the inconsistencies probably arose in relation to the contractual documentation between Forcon and the Dadoun partnership was disconcerting to say the least. To my mind, it does demonstrate a sloppy, almost negligent, approach to it's overall responsibilities for project management and worksite safety. 54 My findings so far in relation to the contractual documentation between Forcon and the Dadoun partnership are indicative, in my view, of an overall lax approach on Forcon's part to ensuring a coherent and reliable approach to doing business with subcontractors. In coming to that view, it does not necessarily mean that Forcon engaged subcontractors without written contractual arrangements in place. That is an issue I will return to later in this judgment. 55 It is appropriate at this point to deal with the defendants' claim that Forcon did not provide any interpreters or Arabic translations to the Dadoun partnership for the WMS or the subcontract agreement. 56 On Mr Dean's own evidence, the only information conveyed by Forcon to Mr Ghaleb El Dadoun in relation to the partnership's safety responsibilities on site was the limited conversation between Mr Dean and Mr Ghaleb El Dadoun on 5 May 2003, utilising Mrs El Dadoun as interpreter. Otherwise, it was left to whatever was conveyed to them on site. That would appear to have been negligible, if the evidence of Mr Carforio, Forcon's building supervisor for the site, is to be accepted. 57 Overall, I found Mr Carforio to be an unimpressive witness in the sense that his evidence reflected poorly on his role as building supervisor at the Forcon site with overall responsibility for workplace safety. His statement to Inspector Macready is illustrative of the basis of that impression as follows: Q43: I am now going to show you a document called "Work Method Statement - Plastering" dated 30/4/03, marked for identification (DMAC4). Have you seen this document before?

[76]

60 When performing cement rendering work at the Forcon site pursuant to their subcontract agreement with Forcon, there can be no doubt the site was both an undertaking and a place of work for the Dadoun partnership. 61 As prior authorities of this Court have determined, what is the employer's 'place of work' is a matter of fact to be determined by the circumstances of the case: see WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] 112 IR 284 at [63] and WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1992) 92 IR 251 at 263. 62 The same approach would apply in determining the extent of a defendant's undertaking. In saying that, it is important to distinguish between 'place of work' and 'undertaking'. On that distinction, Walton J, Vice-President said in WorkCover Authority of New South Wales (Inspector Campbell) v James Gordon Hitchcock (2004) NSWIRComm 87 at [310] as follows: Although there are obvious connections (indeed, an employer's place of work will always be part of its undertaking), the two concepts do not always overlap. An employer's undertaking may be present at a place which is not the employer's place of work and the key to the distinction lies in the examination of performance of work in the circumstances of a particular case. 63 Unlike the expression 'place of work', 'undertaking' is not defined in the Occupational Health and Safety Act 2000. As a general proposition, the defendants' undertaking may be defined as the nature and extent of their business as cement renderers. 64 It is necessary in the first instance to consider the aspects of 'undertaking' and 'place of work' separately: See WorkCover Authority of New South Wales v TAFE (1999) 92 IR 251 at 262. 65 In alleging that the work performed by Mr El Mahrbani at the Forcon site was part of the undertaking and place of work of the Dadoun partnership, the prosecution relied primarily on three indicia: (i) the absence of any written contractual agreement between Forcon and Mr El Mahrbani in relation to the cement rendering work done by him; (iii) the working relationship between Mr El Mahrbani and the defendants at the Forcon site, as evidenced by Forcon personnel, including the utilisation by Mr El Mahrbani of scaffolding belonging to the defendants and the use by him, in the first instance, of 'sand and gravel' that is asserted to have belonged to the defendants; (iii) the process by which the work performed by Mr El Mahrbani at the Forcon site was invoiced and paid. 66 Central to the prosecution's assertion as to the nature of the contractual agreement between Forcon and the Dadoun partnership was the evidence given by representatives of Forcon to the effect that there was only one contract put in place in relation to the cement rendering work done at the Forcon project and that was with the Dadoun partnership. Further, it was said, it was the policy of Forcon to always have written contractual agreements in place with all subcontractors. 67 There was no written contractual agreement in place as between Forcon and Mr Omar El Mahrbani - that much seems evident. Accordingly, counsel for the prosecutor asserted, any work undertaken by Mr El Mahrbani at the Forcon site was done by him on behalf of the Dadoun partnership pursuant to their contractual agreement with Forcon and as part of their undertaking. 68 Evidence as to the policy of Forcon always having written contractual agreements with subcontractors was given by Mr Forsyth and Mr Dean. 69 Mr Forsyth's evidence was more in the nature of what he understood to be the policy of the company in relation to written contractual agreements for subcontractors. That is, he said, there was only ever one subcontract agreement for the internal and external rendering work at the project. That contract was with the Dadoun partnership. 70 Mr Dean, who was responsible on behalf of Forcon for putting the necessary written contractual agreements in place with subcontractors, also confirmed that the subcontract agreement for the work of internal and external rendering at the site was with the Dadoun partnership. Further, he said, he had been told by Forcon staff on site that Mr El Mahrbani 'was working with their (the defendants') team of renderers'. 71 There was evidence in the form of invoices and cheque butts of monies paid by Forcon to other subcontractors who, on the face of the documentation, appear to have undertaken rendering work at the project site during the period when Mr El Mahrbani as well as the defendants were engaged. There was no evidence produced of any written contractual agreements between Forcon and those individuals identified. 72 As I understand it, on the basis of material included in the prosecution brief, those companies or individuals who were identified by the defendants as having undertaken rendering work during the relevant period were as follows: (i) SFSA Pty Limited (ii) Ivan De Sousa (iii) A Team Plastering (iv) Ruzario Hosni 73 Of the above-named, two of them, SFSA Pty Limited and Ivan De Sousa, would appear to have undertaken rendering work at the project site prior to the accident involving Mr El Mahrbani. In his evidence, Mr Forsyth stated that the work undertaken by SFSA Pty Limited was what he referred to as 'white setting' of ceilings, which was, he said, different to cement rendering work. Further, the work undertaken by Ivan De Sousa was, he believed, for some rendering of fencing that was outside the nature of the contract with the Dadoun partnership. As well, he said, after Mr El Mahrbani's accident on 1 October 2003, neither Mr El Mahrbani nor the defendants returned to the site. Accordingly, Mr De Sousa, amongst others, was engaged to complete the rendering work that had not been completed by the Dadoun partnership pursuant to their contractual agreement with Forcon. 74 In his evidence, Mr Dean reinforced the substance of Mr Forsyth's evidence going to Forcon's policy of having written contractual agreements in place for subcontractors on site. 75 He did concede however, it was possible some subcontract work may have been done without written agreements but that was not the case, he stated, in relation to Mr El Mahrbani. As he said in evidence: Q. All I am asking you is whether you agree that it is possible that Forcon, for whatever reason, may have retained the services of a subcontractor without entering into a written agreement? A. It's possible, maybe just to finish off at the end but it's usually not the case.

[90]

Q. So ultimately it comes down to what somebody did or didn't tell you, is that right? A. No, as far as I am concerned, we had the contract with Sydney G & F and he was working as their team of renderers. I wasn't told that he was independent. I was told that he was working as their team of renderers. 77 I accept the tenor of Mr Dean's evidence as to his belief about Mr El Mahrbani working as part of the defendants' team of renderers. 78 Occurring as they did prior to Mr El Mahrbani's accident on 1 October 2003, counsel for the defendants pointed in particular to the payments made to SFSA and Mr Ivan De Sousa as evidence that Forcon did engage subcontractors without written contractual agreements in place. Such evidence, it was contended, pointed to a conclusion that there was no administrative process in place, as asserted by Mr Forsyth and, to a lesser extent, Mr Dean, to ensure all subcontractors were subject to written contractual agreements. Further, it was contended, the absence of any written contractual agreement between Forcon and Mr El Mahrbani cannot, by itself, be seen as evidence that the work undertaken by Mr El Mahrbani at the Forcon site was done pursuant to the contract as between Forcon and the Dadoun partnership and therefore formed part of the undertaking and place of work of the partnership. 79 In further support of that contention, counsel for the defendants pointed to the haphazard and unsatisfactory nature of the record keeping of Forcon in relation to it's written contractual arrangements with the defendants as evidence pointing to the conclusion that Forcon may well have engaged subcontractors from time to time and simply failed to effect written contractual arrangements. 80 I have to say, the evidence relied upon by the defendants in support of it's overall submission on this issue is not as strong as the submission made would suggest. That is, while there was evidence before me of invoices rendered and paid prior to 1 October 2003, particularly to SFSA and Ivan De Sousa, for 'rendering' work done, there is no evidence before me by way of a subpoena issued by the defendants for Forcon to produce copies of any written contractual agreements between it and SFSA and Mr De Sousa for that period. In other words, simply pointing to the payment of invoices and cheque butts does not satisfy the evidentiary onus of establishing that Forcon did not have written contractual agreements with SFSA and Mr De Sousa - or with other subcontractors. 81 Further, a sloppy and haphazard approach to written documentation does not, by itself, point to the conclusion the defendants contend. On the evidence I have, and notwithstanding my critical comments as to Forcon's approach to it's responsibilities in this area, I am satisfied that, as a general proposition, it was part of Forcon's worksite management policy to have written contracts with subcontractors. 82 That conclusion alone, together with Mr Dean's evidence, does not necessarily establish that the work being undertaken by Mr El Mahrbani was part of the defendants' undertaking. Other factual matters arise for consideration. 83 Mr Carforio, the building supervisor for Forcon at the site gave evidence as to his knowledge of the relationship between Mr El Mahrbani and the Dadoun partnership at the worksite. 84 For the reasons earlier stated, I found Mr Carforio to be an unimpressive witness. As well, in his evidence before me, he contradicted evidence he had given in his statements to Inspector Macready. He also had a tendency, on occasions, to give his evidence on the basis of what he believed to be the case rather than any evidence going directly to his recollection of the issue in question. In some respects, his recollection was clearly incorrect. For example, he gave evidence that Mr El Mahrbani was introduced to the Forcon site some two months after the defendants had commenced work there. All the evidence is clearly to the contrary. That is, Mr El Mahrbani commenced work at the Forcon site some weeks before the Dadoun brothers started work at the site. This was because of the inability of the defendants to start work at the site at the time Forcon initially requested as they were engaged elsewhere. It was because of that unavailability that the Dadoun partnership introduced Mr El Mahrbani to the Forcon project. 85 That Mr El Mahrbani commenced work at the site before the defendants is borne out by the first invoice ever rendered by Mr El Mahrbani for work undertaken by him. That invoice (exhibit 14) is dated 26 May 2003 whereas the evidence points to the defendants commencing work on the site sometime in early June. The first invoice rendered for work undertaken by them was 16 June 2003. That was also the day the subcontract agreement between Forcon and the Dadoun partnership was returned to Mr Dean, completed as requested. 86 As the building supervisor, Mr Carforio gave evidence that the cement rendering work was done intermittently as required. Significantly, he says, when such work was required, he always rang 'Ghaleb or Fawaz' - the El Dadoun brothers. Further, he says, he was told by Ghaleb and Fawaz, if they were not on site and any problems arose, he was to contact or deal with Mr El Mahrbani. Finally, on the relationship as between the defendants and Mr El Mahrbani, Mr Carforio gave evidence that in measuring up rendering work for billing purposes, done either by Ghaleb or Fawaz El Dadoun or Mr El Mahrbani, such measuring work was always undertaken by him accompanied by Mr Ghaleb El Dadoun. His evidence on these issues was not challenged. 87 Mr Carforio stated, when on site, Mr El Mahrbani and his team of employees always worked at different parts of the site from the team overseen by Mr Ghaleb and Fawaz El Dadoun. That is, they worked at different parts of the site, often at the same time. 88 The misgivings I felt about some aspects of Mr Carforio's evidence were reinforced when one has regard to the evidence he gave in relation to the initial allegation that, at the time of the accident, he saw Mr El Mharbani standing on two milk crates. When spoken to by Inspector Macready on 9 March 2004, he was asked: Q95: What was Omar El Mahrbani standing on at the time of the incident? A: He was working off two milk crates on top of each other at the time of the accident. 89 In his evidence before me, Mr Carforio stated he had never seen Mr El Mahrbani 'actually standing on milk crates'. Rather, that was what he believed Mr El Mahrbani was doing. 90 There is also inconsistency in Mr Carforio's evidence and his entries in the Forcon site diary as building supervisor. For example, in relation to the circumstances existing on the day of the accident, it was Mr Carforio's evidence that, on that day, there was no scaffolding in place in relation to the work being performed on the balcony of unit 7 by Mr El Mahrbani and, as a fall protection measure, he ensured timber handrails were put in place across the edge of the balcony with uprights 1100mm high and a timber handrail on top. Further, Mr Carforio stated, at the time the accident occurred, Mr El Mahrbani or one of his workers had removed the handrail on a number of occasions during the course of the day because he was told it was easier for them to perform their work. 91 Much was made of the absence of scaffolding on 1 October 2003 and when it had been removed. According to the site diary entries made by Mr Carforio, the scaffolding in front of the balcony on unit 7 was pulled down by the renderers on 30 September 2003 - the day before the accident. According to his entry in the site diary, the workers were told not to. It was, he said, because of the absence of the scaffolding on 1 October 2003, that the handrail fall protection measure was put up on the balcony of unit 7. However, Mr Carforio's entry in the site diary for 26 September 2003, confirmed in his statement to Inspector Macready on 9 June 2005, was that it was on 26 September, some four days before the accident, that the renderers pulled down the handrail on unit 7 and were asked to put it back on. Indeed, on the day of the accident, 1 October 2003, there is no mention in the site diary of any handrails being removed by the renderers from the balcony of unit 7. 92 If one has regard to the photographs taken by Mr Ghaleb El Dadoun on the day of the accident, two wooden uprights are evident on the balcony of the unit where Mr El Mahrbani fell. There is no evidence of any handrail. 93 Mr Carforio was challenged on the veracity of his evidence on this point and he adhered to it but, in all the circumstances, I found aspects of his evidence on this issue unreliable. 94 The evidence of Mr El Mahrbani is that the removal of scaffolding occurred about four days before his accident on 1 October 2003. As well, in his statement to Inspector Macready on 1 March 2004, Mr El Mahrbani indicated there was no handrail in place on the balcony of unit 7 on the day of his accident. As he explained to Inspector Macready, in removing the scaffolding from the wall on the south side of unit 7, he did so because, he said, he had been promised by the two Forcon foremen that wooden handrails would be put up on all the balconies to prevent falls and that he had spoken to the Forcon supervisors about this prior to starting work. According to him, scaffolding was not used as fall protection while he was working on the balcony of unit 7 because, he said, it was not his job to install the scaffolding to the balconies. 95 In relation to the issue of scaffolding, I prefer the evidence of Mr El Mahrbani to that of Mr Carforio. The evidence given by Mr El Mahrbani on this issue was consistent, both in his statement to Inspector Macready and before the Court. That is, scaffolding had been removed some four days or so prior to the accident and there was no handrail in place on the day he fell. 96 Mr El Mahrbani said that he was introduced to the worksite by one or other of the Dadoun brothers and that he gave a verbal quote for the rendering work he was to do to 'Jiff' who I understand to be Mr Jeff Forsyth, one of the other building supervisors on the site. Mr Jeff Forsyth was not called to give evidence. 97 His understanding as to the basis of the work undertaken by him at the site was expressed by him as follows: Q. You were first introduced to the site and the company by Fawaz or Ghaleb El Dadoun, is that right? A. Yes.

[100]

Q. Who said that? Who told you that? A. Lui. 101 There was also the use by Mr El Mahrbani of scaffolding that was on site. On one view of the evidence, the scaffolding belonged to the Dadouns. That was certainly Mr El Mahrbani's belief although he said he was told that by Mr Carforio. However, Mr Carforio also told Inspector Macready that Forcon provided scaffolding on the site that was able to be used by the subcontractors. 102 According to the defendants, they did have scaffolding on the site but had removed it some time prior to Mr El Mahrbani's accident. 103 On the evidence, it was not possible for me to come to a concluded view that the scaffolding, about which much evidence was elicited and would appear to have been disassembled a few days prior to Mr El Mahrbani's accident, was scaffolding that belonged to the Dadoun partnership or was scaffolding that had been hired by Forcon. 104 The primary indicia relied upon by the prosecution to establish that Mr El Mahrbani, when working at the Forcon site, was part of the defendants' undertaking and place of work was the process by which Mr El Mahrbani invoiced and was paid for the work he performed at the Forcon site. 105 In the first instance, Mr El Mahrbani rendered an invoice to Forcon dated 26 May 2003 for what he described as the first progress payment. That invoice (exhibit 14) was an invoice for 'the Renderers' which would appear to be the trade name for O & A Mahrbani, Lic. No. 111061C. That invoice, with the request for payment of $8,800 inclusive of GST, was faxed to Forcon via the facsimile machine of the defendants on 26 May 2003. According to Mr El Mahrbani and confirmed by Mrs Intisar El Dadoun, the wife of Mr Ghaleb El Dadoun, that invoice was sent by her utilising the partnership's facsimile machine. Mr El Mahrbani did not have a facsimile machine and he had called in to their home and asked her, as a favour, to fax it to Forcon, which she did. 106 The invoice forwarded to Forcon from Mr El Mahrbani in May 2003 did not indicate any measurement of the square metres of render that had been undertaken by him to support the payment of $8,800. Mr El Mahrbani was asked the basis on which he had issued that invoice. His evidence was thus: Q. How did you know to charge that amount of money? A. I spoke to Lui about the job and he said - Lui said to me, "Put the invoice in and I have to warn you that you won't get paid until after 25 days from putting the invoice." Meanwhile I had worked for seven to eight days before that. Well, I thought to myself, since I'm not going to get paid for another 25 days, by that time I may have worked $25,000 worth of rendering, that is why I put down on the invoice 8800. When Lui saw this invoice, which was worth 8800, he went back, behind my back, without telling me, he measured the job that I have done and according to his measurement rectified this invoice and put it down as 6534. 107 When Mr El Mahrbani's first invoice was received by Forcon, certain entries were made on the face of the document by Forcon personnel, setting out measurements of the amount of rendering undertaken. Relevantly, in my view, calculation of the payment to be made was based on the square metre rate for internal rendering set out in the agreement between Forcon and the defendants. When questioned about this, Mrs El Dadoun said it was 'coincidental'. Based on the measurement and the rate, a payment of $6,534 was approved to Mr El Mahrbani and was paid to him on 13 June 2003. 108 On the face of that document, Mr El Mahrbani was rendering an invoice for work performed by him and which was payable directly to him by Forcon. Mr Dean was asked about this invoice by Inspector Macready in June 2004 as follows: Q59: I am now going to show you a document dated 26/05/2003, marked for identification (DMAC8). Have you seen this document before? A: I probably have. Q60: Can you tell me what this document is? A: It's a cement rendering invoice from O & A Mahrbani addressed to Forcon Pty Ltd for work carried out at 2-6 Anglo Square, Carlton dated 26/5/2003. Q61: Was Omar El Mahrbani paid on the basis of this invoice only? A: No, I would find out the area that this invoice related to, measure the area and apply the square metre rate which was stated in the subcontract agreement which we had with Sydney G&F Cement Rendering. Q62: Were any quantities of actual rendering work completed by Omar El Mahrbani ever submitted by Omar El Mahrbani to Forcon Pty Ltd? A: I don't believe so. I believe the only quantities we received were from Sydney G&F Cement Rendering. Q63: Were all payments to Omar El Mahrbani made on the basis of instructions from Sydney G&F El-Dadoun Cement Rendering? A: Yes. 109 Further, in his evidence Mr Dean was asked the following: Q. If you hadn't been instructed by the Dadoun partnership to pay Mr Omar El Mahrbani but he had asked for some payment direct from you, would you have paid him? A. No.

[108]

Regards Intisar El-Dadoun 114 A number of issues arise when considering the tax invoice earlier described together with Mrs El Dadoun's covering letter. The first is that on the tax invoice there is no differentiation or break up made to distinguish the work undertaken by the defendants as distinct from Mr El Mahrbani. The work performed by Mr El Mahrbani is included in the tax invoice rendered by the defendants. Further, when the total amount owing is calculated, adjustment is made for the amount of $6,500 already received. That $6,500 can only be the amount of $6,534 paid to Mr El Mahrbani when he rendered his invoice on 26 May 2003. 115 In short, the marrying of work performed by Mr El Mahrbani with work performed by the defendants points quite clearly, it is said, to the fact that Mr El Mahrbani's work was clearly part of the undertaking of the Dadoun partnership at the Forcon site. That interpretation is reinforced, it is said, by the wording of Mrs El Dadoun's letter in which she indicates that: The last invoice was made out for $8,800 and only received $6,500 in Omar El-Mahrbani: it's OK. Don't worry about the balance it's all in the new invoice with measurement as required. 116 Further, it is relevant to note that when the invoice was received by Forcon, an adjustment was made. The copy of the invoice received by Forcon (in exhibit 6) has a number of notations on it. The first is to the effect that the square metres of rendering claimed for in the invoice were 'checked by Luigi' and adjusted to 914 square metres of internal rendering and 271 square metres of external rendering - a difference overall of some 540 square metres from the original measurements quoted on the invoice. Utilising the adjusted figures and applying the same approach as Mrs El Dadoun, the balance owing would have been as follows: Internal rendering 914m2 x $12.10: 11,059.40 External rendering 271m2 x $20.90: 5,663.90 Total 16,723.30 Received 6,500.00 Balance 10,223.30

[122]

Q. Not to your knowledge? A. No. 120 The evidence of Mrs El Dadoun as well as that of Mr El Mahrbani was that the defendants, and Mrs El Dadoun on their behalf, were simply acting as a convenient conduit for the sending on of invoices for work performed by Mr El Mahrbani independent of the Dadoun partnership. It was said by Mrs El Dadoun and the two defendants as well as by Mr El Mahrbani that Mr El Mahrbani and the El Dadoun brothers were friends who knew each other, having been involved in the same type of business and being part of the same cultural circle. As Mrs El Dadoun described: A. They've known each other as friends, they've met at AMES, English language, and since then they've been only friends. 121 As the letter of Mrs El Dadoun to Forcon of 19 June confirms, in addition to the letter and the attached invoice, Mrs El Dadoun also faxed to Forcon a copy of the certificate of currency in relation to workers' compensation and public liability required by Forcon pursuant to the contractual agreement between it and the Dadoun partnership. On that date, Mrs El Dadoun also faxed to Forcon a separate tax invoice in Mr El Mahrbani's business name of 'The Renderers' indicating an amount owing for a second progress payment of $7,800. While there is no date on that invoice, there is a facsimile confirmation sheet confirming that a one page document was sent from Sydney G & F El Dadoun Cement Rendering to Forcon on 19 June 2003. The amount claimed by Mr El Mahrbani in that invoice is $7,800 but there is no detail as to metres of wall rendered to support the amount claimed. The only invoice that has such detail on it is the one sent by Mrs El Dadoun on behalf of the Dadoun partnership. 122 Mrs El Dadoun confirmed it was her handwriting on that invoice and explained that the information forming the basis of her calculations as to monies owed were obtained from Mr Carforio. When asked why she wrote the letter in the terms she did, her explanation was as follows: A. Okay. There was a big misunderstanding here. This about this invoice, I was doing 100 things at once, cooking, my son, the invoice and then Omar came over. When Omar came over I was making coffee. I gave them the coffee, they were sitting in the garage, and then my husband asked me, did you send that invoice, I go, no, I'm going to do it right away, then Omar popped up and requested, please, just mention the cheque, that I'm still waiting, and please ask them to make it into my name. I don't know, I know I did not notice there was a mistake and I did not notice that I put, mixed up everything into one page. I'll just give you a small example. It's just like making a stir-fry, I know this may be a stupid example in Court, but making a stir-fry when you're cooking the vegetables separate and then you're cooking the rice separate. I put the vegetables and rice together, mixed them together, put it on the table for others to eat. So, I do apologise for my misunderstanding from my husband, causing all this big trouble, and ...

[125]

A. Not at the same time, no. 123 In his evidence, Mr El Mahrbani confirmed the tenor of Mrs El Dadoun's evidence to the effect that any forwarding of tax invoices for amounts owing to him for work performed was done as a favour and at no time was the work he performed part of any business arrangement the Dadoun partnership had with Forcon. He had given Mrs El Dadoun a separate invoice for the second progress payment on 19 June which was sent separately and, as best as I can understand it, was unclear as to the way in which Mrs El Dadoun completed the tax invoice on that day in the way she did to reflect work performed by him as well as by the defendants. 124 When one considers the tax invoice sent to Forcon on 19 June 2003 by Mrs El Dadoun together with her accompanying letter, it is difficult to escape the conclusion that it is reflective of a relationship between the Dadoun partnership and Mr El Mahrbani to the effect that the work being undertaken by him was part of the defendants' contractual agreement with Forcon and, accordingly, part of the partnership's undertaking at that worksite. 125 While I accept it is perfectly understandable that Mr El Mahrbani utilised the facsimile facilities of the Dadoun partnership to send on his invoices for work performed, it is difficult to reconcile how that request was merged in such a comprehensive way in the tax invoice rendered on 19 June 2003 on behalf of the defendants. In other words, if Mrs El Dadoun was doing what she indicated she was asked to do, which was simply to forward Mr El Mahrbani's invoices onto Forcon, then that would have been, in my view, a stand alone action with no need on her part to merge the invoice for rendering in the way she did with no distinction as between Mr El Mahrbani and the defendants for the work performed. The only breakdown made was the request by Mrs El Dadoun that Forcon pay Mr El Mahrbani $7,800 direct with the balance to the defendants. 126 According to Mr Dean, the only basis on which the payment was made direct to Mr El Mahrbani was at the request of Mrs El Dadoun on behalf of the defendants. 127 Mr El Mahrbani's explanation that he utilised the services of the Dadoun partnership to fax the first invoice for work undertaken by him at the Forcon site because it was convenient for him to do so and would save him having to drive to the Forcon office at Miranda is, on one view, plausible. 128 If that was all that had been done, then I could not be satisfied beyond reasonable doubt that Mr El Mahrbani was part of the overall business undertaking of the Dadoun partnership pursuant to their contractual agreement with Forcon. However, that is simply not the position. The sending by Mrs Dadoun of the tax invoice on 16 June 2003 in the way in which she did, incorporating into the defendants' tax invoice work undertaken by Mr El Mahrbani without any separate identification for that work, is compelling as to the clear inference arising from it. That is, in submitting a tax invoice to Forcon, the Dadoun partnership was submitting an invoice for payment that, in totality, incorporated work performed by Mr El Mahrbani. 129 True it is, Mr El Mahrbani also had Mrs El Dadoun fax an invoice under his own business name on the same day for $7,800 which simply confirms what had been requested in Mrs El Dadoun's covering letter of 19 June 2003 set out above. 130 I do accept that Mrs El Dadoun is not a businesswoman and is relatively unfamiliar with the intricacies of business contracts. Having said that, it is all the more reason why, when Mr El Mahrbani gave her his invoice to forward to Forcon, she did not do exactly that rather than go through the process of incorporating his work into the defendants' invoice. In other words, if all Mrs El Dadoun was doing was a favour to Mr El Mahrbani by forwarding his invoice to Forcon, she would, in my view, have simply done exactly that and no more. 131 It is interesting to note that the invoices submitted by Mr El Mahrbani in May 2003 and again on 19 June 2003, give no detail as to the square metreage of rendering undertaken, either internally or externally. In relation to the first invoice of 26 May 2003, that calculation, which would be critical to determining the monies owed, was undertaken by Forcon and, even by Mr El Mahrbani's admission, by Mr Carforio. Mr Carforio stated that, at all times, any measurement he had done was always undertaken with Mr Ghaleb El Dadoun. No evidence was elicited from Mr El Mahrbani to the contrary and certainly the measurements stated in the invoice of 19 June 2003, given to Mrs El Dadoun by Mr Carforio, would support the view that what was being invoiced was all work having been undertaken by the Dadoun partnership, including by Mr El Mahrbani. 132 Having considered all the evidence in relation to this issue, I am satisfied, at the time Mr El Mahrbani commenced work at the Forcon site, he did so as part of the undertaking of the Dadoun partnership pursuant to their contractual agreement with Forcon and, while he was performing his cement rendering work, the Forcon site was the defendants' place of work. 133 The second point raised on behalf of the defendants is that, at the time of Mr El Mahrbani's accident on 1 October 2003, the Forcon worksite was no longer a place of work for the Dadoun partnership, they having left the site some time before. In short, it is said, work being undertaken by Mr El Mahrbani at that time was independent of the contractual agreement as between Forcon and the Dadoun partnership and he was working independently of them. 134 According to Mr El Mahrbani, after his initial work at the site he left and then, when requested, he went back to do further work. As he said: Q. Did Ghaleb and Fawaz start rendering at the time that you started rendering? A. No. Q. Did they start rendering after you? A. I think yes but I have to clarify something here, I just want tell you that I have done six units from the inside on that job; I had worked on six units - on the inside walls of six units and then I left the job and I went back when they called me to finish three more walls on that job site; so I was - I didn't go back to that job until I was called to finish three walls and a balcony on the ground floor and balcony on the unit 7. 135 According to both the defendants, they also left the Forcon site around the end of July and returned in September for approximately ten days. They then left the site again and went to a job at Wiley Park. Mr El Mahrbani remained working at the Forcon site. 136 As a general approach, the evidence discloses that the cement rendering work undertaken by the defendants and Mr El Mahrbani at the Forcon site was undertaken as and when required to be done. That is, Mr Carforio, amongst others on behalf of Forcon, would notify the defendants when there were walls, either internally or externally, requiring to be rendered. The subcontractors would then make their own arrangements to undertake that work. In other words, there was a degree of start/stop in the overall cement rendering work performed at the site. 137 As earlier stated, at the time of Mr El Mahrbani's accident, the defendants were no longer working at the Forcon site. There is evidence to infer the defendants still had some scaffolding on site and it was that scaffolding that was disassembled by Mr El Mahrbani some few days prior to his accident. On that point, as I have already indicated, I cannot be confident to the requisite standard. 138 What or what does not constitute a place of work has been the subject of consideration in early decisions of this Court, both at first instance and appellate level. Indeed, I have had cause to consider that issue in some detail, more particularly in my decision of WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited (2005) NSWIRComm 263 as follows: [14] I agree with counsel for the defendant that many authorities of this Court that have had cause to consider the question of an employer's 'place of work' have done so within the context as to whether or not the immediate environs of a 'place of work' were within the application of that expression as it is used in the Act. See, for example, Inspector Clark v W L Meinhardt & Partners Pty Limited (Unreported) Matter No's IRC 1212 and 1213 of 1990: 30 June 1992 at 12 where Fisher CJ, in considering 'place of work' in the circumstances then before him, said: With respect to the duty under s 16(1) I consider the employer's conduct of his undertaking includes here the design of the facade retention structures, the safe retention of the facade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the facade collapsed.

[134]

[24] What is clear from the judgment of Peterson J is that he considered both the concept of 'undertaking' and 'place of work' in his considerations. On one view, a reading of the judgment as to submissions made as well as his Honour's view is that the two expressions were used synonymously. In any event, his Honour determined, notwithstanding that Boral Montoro or its employees played no part in fixing the roof tiles, the work undertaken in that task by its sub-contractors was Boral's 'place of work/undertaking'. 139 At the time of Mr El Mahrbani's accident, the defendants still had a written agreement with Forcon. The evidence of Mr Forsyth, which I accept, is that as far as Forcon was concerned, the contractual agreement with the defendants was on foot at the time of Mr El Mahrbani's accident. His unchallenged evidence was that at the time of Mr El Mahrbani's accident, the cement rendering work was incomplete and, as a consequence, it was necessary for Forcon to go outside that contractual agreement and find other renderers to finalise the job. According to Mr Forsyth, after Mr El Mahrbani's accident, the defendants did not return to the Forcon worksite. 140 There is certainly no evidence to suggest the agreement between Forcon and the defendants had been terminated notwithstanding the stop/start nature of the job at the time of Mr El Mahrbani's accident. It is also apparent there was still rendering work to be done as the project progressed. 141 I have determined, pursuant to that contractual agreement, the defendants subcontracted part of their contractual work to Mr El Mahrbani. It seems to me, whilesoever that contractual agreement remained on foot, work being performed by Mr El Mahrbani on behalf of the defendants at the Forcon site tied the Dadoun partnership inextricably to the site as a place of work. In short, adopting the approach as exemplified by Petersen J in Boral Montoro, Forcon's building site was an undertaking and place of work for the Dadoun partnership whensoever Mr El Mahrbani was engaged in cement rendering work at the Forcon site. 142 That Mr El Mahrbani was still engaged on behalf of the Dadoun partnership at the time of his accident is supported, in my view, by the fact that on the day the accident occurred, Mr Ghaleb El Dadoun was told of it by Mr El Mahrbani's family. Later that day, as is evident from the photographs before me, Mr Ghaleb El Dadoun visited the worksite where the accident had occurred and took a number of photographs. His explanation was that he was simply passing by and stopped out of interest rather than anything to do with his ongoing involvement in the work being performed. I have to say, having looked at the photographs taken, I find his explanation somewhat implausible. If anything, the photographs taken by Mr Ghaleb El Dadoun are reflective of his continuing interest and involvement in the work being undertaken by Mr El Mahrbani at the project site and indicative of the ongoing undertaking that was in place between Forcon and the defendants. 143 Having regard to all of the above, I am satisfied that at the time of Mr El Mahrbani's accident, the Forcon worksite was a part of the defendants' undertaking and was, pursuant to their contractual agreement with Forcon, a place of work for them. The offence failures as particularised

[135]

144 I turn now to the substantive offence and, more particularly, the failures pleaded with respect to the defendants. 6(a) There was no stable and securely fenced work platform in situ to enable the worker to perform the work safely. 145 I am satisfied this failure has been established. The circumstances in which Mr El Mahrbani was working at the time he fell from the balcony of unit 7, some 4.46 metres above the ground, clearly demanded that proper fall protection measures such as scaffolding be in place. As is evident, that was not the case. There was no scaffolding or any other form of adequate fall protection measure in place in order to prevent Mr El Mahrbani falling in the way he did. 6(b) The defendants failed to ensure that the conduct of the work was in accordance with the Safe Work Method Statement in force pursuant to the El Dadouns' contract with Forcon. 146 In the absence of any further particularisation as to what is being referred to as a failure by the defendants to conduct the work 'in accordance with the Safe Work Method Statement', it is not possible to come to any conclusion in relation to this alleged failure. No evidence was adduced as to what was being contemplated by that alleged failure except perhaps fall protection measures. That issue has been already caught by failure (a) as particularised. In short, it fails for lack of particularity and, for that reason, it is dismissed. 6(c) The defendants failed to properly assess the risk in relation to the work being performed and to identify the hazards associated with the performance of that work and to develop an appropriate control measure for it's conduct. 147 In my view, there is a clear element of duplicity in this alleged failure, particularly having regard to the failure identified in sub-paragraph (a) above. In other words, any assessment as to the risk in relation to the work being performed would have identified the need for a stable and securely fenced work platform to be in place and the way in which that would have been achieved would have been by the erection of scaffolding or similar fall protection measure. Accordingly, in my view, this failure is dismissed on the grounds of apparent duplicity. 6(d) The defendants failed to ensure that the requirements of the Occupational Health and Safety Regulation 2001, clause 56 were complied with in respect of the conduct of work which involved a risk of a fall from a height of more than two metres. 148 In the first instance, the provisions of clause 56 of the Occupational Health and Safety Regulation 2001 provides as follows: (1) An employer must ensure that risks associated with falls from a height are controlled by use of the following measures: (a) provision and maintenance of: (i) a stable and securely fenced work platform (such as scaffolding or other form of portable work platform), or (ii) if compliance with subparagraph (i) is not reasonably practicable - secure perimeter screens, fencing, handrails or other forms of physical barriers that are capable of preventing the fall of a person, or (iii) if compliance with subparagraph (ii) is not reasonably practicable - other forms of physical restraints that are capable of arresting the fall of a person from a height of more than 2 metres, (b) provision of a safe means of movement between different levels at the place of work. (2) If a fall arrest device is provided for use by persons at work, the employer must ensure that: (a) all anchorage points for the device are inspected by a competent person before their first use and then on a regular basis so they are capable of supporting the design loads, and (b) if the load-bearing capacity of an anchorage point is impaired, the anchorage is immediately made inoperable so as to prevent its use, and (c) any harness, safety line or other component of the device that shows wear or weakness to the extent it may cause the device to fail is not used, and (d) all persons using the device have received training in the selection, assembly and use of the system, and (e) adequate provision is made for the rescue of a person whose fall is arrested by a fall arrest device. 149 It is abundantly clear on the basis of the evidence that the defendants did fail to comply with the provisions of clause 56 of the Occupational Health and Safety Regulation 2001 as set out above. There was no scaffolding in place and the purported fall prevention measure that was allegedly in place was, on any view, as the photographs demonstrate, manifestly inadequate, having regard to the work being undertaken by Mr El Mahrbani some 4.46 metres above the ground. 150 Again, while I am satisfied this failure is established, it is clearly duplicitous having regard to the failure as pleaded and failure (a) above. Accordingly, it is dismissed. 7 The defendants failed to provide appropriate information, instruction, training and supervision in relation to the conduct of work involving the rendering of the straight edge above the top of the sliding door when it involved the workers standing on a platform approximately 500mm above the concrete balcony floor such as was necessary to ensure that risks to the health and safety of the worker were avoided.

[137]

153 Counsel for the defendants raised the issue of a defence under s 28(b) of the Act. Section 28 provides as follows: It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 154 Having determined that the offence has been proved, the defendant bears the onus of establishing, on the balance of probabilities, that it can rely on one or other of the statutory defences provided under s 28 of the Act. 155 In my view, the defendants cannot rely on s 28(a) to discharge their liability for the respective offence for which they stand charged. In short, it was at all times reasonably practicable for them to have ensured that the necessary fall protection measures were in place in order to address the risk to safety that Mr El Mahrbani's work represented and to ensure he was given sufficient information and instruction in order to enable him to take the necessary steps to address the risk to safety that working at a height clearly represented. 156 Further, in relation to the defence arising under s 28(b) of the Act, I am not satisfied that the causes of Mr El Mahrbani's accident and particularly the risks to safety that his accident highlighted, was due to causes over which the defendants had no control. At all times, it was known to them that the work being undertaken by Mr El Mahrbani pursuant to their undertaking with Forcon involved working from heights and that scaffolding was a necessary prerequisite in order to undertake that work safely and as a necessary fall protection measure. It was at all times perfectly open to them and a matter over which they had control, to ensure scaffolding or a suitable fall protection measure was in place at all times when Mr El Mahrbani was working at heights. Nor was it impracticable at any time, on the evidence before me, for them to not make provision for that. Accordingly, I am not persuaded the defendants have established the defence available under s 28 (b) of the Act. 157 Accordingly, I find the offences proved with respect to particularised failures 6(a) and 7 as pleaded. 158 I will hear further from the parties as to sentencing and costs.

WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El Dadoun and Ghaleb El Dadoun

At a glance

Court

Decision date

Before

Source

Judgment (138 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (10)

Cited By (1)