Mr Rohimi suffered an electric shock on 26 April 2012. At the time, he was working on a construction of a commercial residential development at 7 Stewart Avenue, Hammondville. He was working on scaffolding on the first floor of the construction. The scaffolding was outside the building. He was placing metal poles in cavities of building blocks. Those building blocks had been used in the construction of a wall. The metal poles were to act as reinforcing for a concrete pour the following day. The scaffolding had been erected within a few metres of live power lines. Mr Rohimi placed a number of poles in position without mishap. On one instance however, a pole he was handling to put in position, contacted the low voltage power line and he suffered the electric shock.
The defendant was the head contractor or principal contractor on the site where the development was being undertaken. One of its directors was Mr Dagher. He was responsible for the onsite operations of the defendant. Ultra Group Pty Ltd, had contracted with the defendant to install the scaffolding. E&T Bricklaying Pty Ltd had contracted for the defendant to perform labouring and bricklaying work. Mr Rohimi was employed by E&T as a bricklayer.
There is some confusion in the material as to whether the installation of the scaffolding had in fact been completed at the time of the incident. Mr Dagher had a belief that it had been completed. In a record of interview with WorkCover after the event, he stated as much. He had been told by Mr Azzi that it had been completed. Mr Azzi was the sole director of Ultra Group and had installed the scaffolding. The defendant had made final payment for the scaffolding two days before the incident. It appears the fact may be that the scaffolding had not in fact been completed. No certificate of completion had been provided. Mr Dagher frankly acknowledges an error on his part in his affidavit sworn on 1 July 2015 in this regard. He speaks about this in para 7. He states there his belief that the job had been completed. He accepts that it was not. He states that this will make him even more careful and vigilant in the future to ensure that despite what he is told, he will undertake the inspection himself.
The defendant has been charged, that being under a duty under s 19(1) of the Work Health and Safety Act 2011, it failed to comply with that duty, contrary to s 32. The defendant has pleaded guilty.
The particulars of the charge are set out in para 9 of an annexure to the summons. In summary form, they are:
1. failing to ensure that the scaffolding was installed a safe distance from the power lines. That may not have been practical in the circumstances of this case;
2. failing to ensure that a safe work method statement that prohibited workers from working with metal from the scaffold within 4 metres of overhead power lines without a risk assessment and control measures had been in place. A number of control measures is specified in para 9;
3. failing to ensure that a risk assessment had been undertaken which identified the hazard, and failing to put control measures in place. The same control measures are identified;
4. failing to ensure that workers using the scaffold were properly trained and instructed as to the risks.
In sentencing, I need to bear in mind several matters. I need to bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act. I need to bear in mind the purposes of the Work Health and Safety legislation, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I need to bear in mind any aggravating and mitigation factors, including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act, so far as any of those may be relevant.
I commence my analysis with a consideration of the gravity of the offence. This is determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk.
This incident was readily foreseeable. The handling of metal objects in close proximity to live wires was fraught with risk of contact between the two if proper precautions were not taken.
The consequences of the risk coming home in this case, were readily foreseeable. Electric shock and even electrocution were foreseeable consequences.
Measures were readily available to avoid the risk. They included de‑energising the power line. That could have been done simply by contact with the appropriate electricity supply authority. Another measure was to place a physical barrier between the working area of the scaffold and the power line. Either of those measures would have prevented the risk. Other measures included the use of a spotter to warn Mr Rohimi if he looked like he was going to be touching a livewire. Another measure would have been the use of tiger tails. Tiger tails are so‑called, I assume, because of their colour. They are wrapped around a live wire. Those latter two measures may not have avoided the risk. They would certainly have minimised the risk.
In considering the objective seriousness of the offence, and moral blameworthiness, it is relevant to note that the risk is identified in cl 166 of the Work Health and Safety Regulation 2011, which requires a risk assessment to be undertaken and control measures put in place, in the circumstances prevailing in this case. The WorkCover Code of Practice for work near overhead power lines, reinforces that. The Australian Standard also stipulates a distance of 4 metres should be maintained where metal is used. That distance was not maintained in this case. The Standard also stipulates that employers must ensure that workers possess sufficient knowledge and have had adequate training. Mr Rohimi did not fit that bill. He undertook a construction general induction training in 1985 in his first language, Farsi. He has limited understanding of English. He cannot read English. He needed an interpreter for his interview with WorkCover. The site induction checklist for this job was signed by all the E&T employees other than Mr Rohimi.
Ultra had provided the defendant with a work method statement shortly before the incident. It is exhibit BX2. It very specifically identified the proximity of power lines and the risk of electric shock. As a control measure, it stated, "Stay 2‑3 metres away from power lines at all times. If need to erect scaffold within this area, procedures should be taken". It added, "Notify power authority before commencement. Do not commence work until pre‑start site meeting and risk assessment is completed". Those matters were not done.
The offence in this case is one resulting from the failure to have an appropriate safe system in place and a failure to follow the recommendations in the various documents. Mr Dagher, in his affidavit, has no hesitation in frankly acknowledging these matters.
I need to consider deterrence. Specific deterrence does remain a factor that needs to be borne in mind, though I do not think it looms very large in the circumstances of this case. This is because of the circumstances set out in the affidavit of Mr Dagher. It is fairly evident that he has learnt a lesson from this. He has adopted measures to ensure that this sort of thing cannot happen again. Those measures include the use of tiger tails. An example of that is in Exhibit DX1. There are also systems that he has put in place which are to some extent spelled out in paras 11 and 14 of his affidavit. After the incident he consulted his representative body and they assisted him to put in place a system of work which was improved and it was done to the satisfaction of Workcover. There is also the matter I mentioned earlier that he now checks things himself. In paragraph 14 he states, in effect, that all workers who work as independent contractors come onto his site have to satisfy him that they have proper systems of work in place and they undertake his induction studying program and they have their own induction studies.
General deterrence remains a factor to be considered. There are many operators in industry where projects are undertaken involving potential exposure to live power lines. Fatality is all too readily a potential consequence. Operators must understand the need to comply with safety requirements and that there are consequences if they do not.
Mr Stanton who appears for the defendant has impressed upon me a number of subjective matters. The defendant has no prior conviction. That in a literal sense may not mean a lot as Mr Dagher started the defendant company in 2012. However, it may be seen in a broader context. Mr Dagher has worked as an electrical contractor without incident since 1988. In 2000 he became a developer using a company called M & D Constructions Pty Limited. After that he started the defendant company in 2012. There are no prior convictions. That needs, I think, to be seen in that broader context.
Mr Stanton submits that the defendant is of good corporate standing. He submits that it is unlikely to reoffend. I have already expressed a number of matters that provide a solid support for that submission.
The defendant has expressed its remorse through Mr Dagher. This is not simply a mouthing of remorse for the purposes of this penalty hearing. Mr Dagher's affidavit sets out a number of steps he took following this incident, including some frequent contacts with Mr Rohimi's employer and also including a number of visits by Mr Dagher to Mr Rohimi when he was in hospital. The affidavit is very telling in the way the incident has affected Mr Dagher and his remorseful response.
The defendant entered a plea of guilty at the first available opportunity. It has also co-operated with Workcover in the course of the prosecution. That co‑operation remains ongoing. A number of defendants has been charged in respect of this particular incident and there are still outstanding charges to be dealt with. The defendant's co-operation with Workcover continues.
One of the companies on site has already been dealt with. That was Ultra. My attention was drawn to the principle of parity in relation to that. In the end the submission was not put that the parity principle would necessarily apply. I think that was an appropriate approach to take by the Prosecutor. I might note that Ultra was fined $500,000 by Judge Finnane. There are a couple of differences. One is that Ultra in fact erected the scaffolding. That may not be a difference of much moment because the defendant remained under its obligations. More to the point is that Ultra had representation for a time. By the time the matter came to sentence hearing however, the representation it had was withdrawn. Not only was Ultra without representation it did not even appear at the sentence hearing. Judge Finnane had nothing put to him from Ultra's point of view about its role in the occurrence of the incident or any mitigating or subjective factors that might be at play. It is not appropriate in these circumstances to turn to that case and seek to apply the parity principle.
There has been an issue before me as to whether costs is something that can be taken into account in considering penalty. It would seem the matter has not been definitively resolved in terms of WorkCover prosecutions. It has been the practice in other prosecutions by other bodies for costs to be taken into account in considering penalty. It is not that it is compulsory that that be done but it may be done. I do not see why WorkCover prosecutions should be different. The defendant will be paying WorkCover costs of $14,000. I think it is something that may be taken into account but it is a relatively minor amount and it does not loom large in the overall consideration. Plainly it cannot be taken into account on a dollar for dollar type of approach.
That leaves me with fixing an appropriate figure by way of penalty for this case. The maximum penalty that may be imposed is the sum of $1,500,000. That of course can be imposed only in the most extreme of cases and this is nowhere near that. It is however, a case of considerable objective seriousness and it is to Mr Dagher and the defendant's credit that that is frankly acknowledged.
Bearing almost all matters in mind, I think an appropriate penalty would be $100,000. Considering the plea of guilty and the co‑operation with WorkCover I think it is appropriate to discount that by 25%. The penalty I impose then will be $75,000.
The orders I make then are the defendant is convicted and fined the sum of $75,000 with a moity to the prosecution. The defendant is to pay the prosecutor's costs agreed in the sum of $14,000.
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Decision last updated: 09 November 2015