WorkCover Authority of New South Wales (Inspector Mulder) v United Admin Pty Limited, Daniel Nicolas and Dasco Construction Pty Limited

WorkCover Authority of New South Wales (Inspector Mulder) v United Admin Pty Limited, Daniel Nicolas and Dasco Construction Pty Limited - [2007] NSWIRComm 195 - NSWIRComm 2005 case summary — Zoe

[18]

7 In relation to Dasco and Mr Nicolas, it was said the defendants: Failed to ensure that people not employed by Dasco, including employees of Hypec Information Technology Services Pty Ltd (Hypec) were not exposed to risks to their health and safety arising from the conduct of Dasco's undertaking while they were at Dasco's place of work. 8 The particulars in respect of Dasco and Mr Nicolas are stated in identical terms to those applying to United Admin and I do not propose to repeat them. 9 Three other parties were charged in relation to the incident. Matter No IRC 3047 of 2006 was an offence charged against Mr Christopher Fiore, the sole director of United Admin. On the application of the prosecutor, leave was granted to formally withdraw the proceedings. The other two parties charged were Avrasya Construction Pty Limited and a director of the company, Mr Murat Sahin. Both defendants entered a plea of guilty at an earlier time and have already been dealt with by the Court: See WorkCover Authority of New South Wales (Inspector Mulder) v Murat Sahin and Avrasya Constructions Pty Limited [2007] NSWIRComm 149 handed down on 20 June last. 10 At the time of filing, there was disagreement between the parties as to paras [16.9], [20] and [23] in the statement of facts filed by the prosecutor. Following oral evidence received from Mr Fiore, counsel for the prosecutor did not press the disputed statements in paras [16.9] and [20] and accepted the defendants' statement in para [23]. Accordingly, the facts with respect to all three defendants are now agreed in the following terms: [1] At all material times, Dasco Construction Pty Ltd (ACN 092 098 587) (Dasco): [1.1] Was a duly incorporated company and employer with its registered office located at Unit 25, 6-20 Braidwood Street, Strathfield South, New South Wales; [1.2] Was the principal contractor in the construction of 45 units, retail area, car park and landscaping at the premises (Development); [1.3] Conducted and was engaged in the business of the Development at the premises (undertaking); [1.4] Contracted PAV NSW Pty Limited to provide its principal, Peter Avramov (Avramov) as foreman of the Development; [1.5] Contracted United Admin Pty Ltd (ACN 080 427 489) (United Admin) to provide project management services in relation to the Development; [1.6] Contracted Avrasya Construction (ACN 107 884 211) (Avrasya) to provide bricklaying services in relation to the Development. [2] At all material times, Avrasya: [2.1] Was a duly incorporated company with its registered office located at 20 Civic Road Auburn, New South Wales and its principal place of business being 2 Elm Road, Auburn, New South Wales; [2.2] Was contracted by Dasco to provide bricklayers to work on the Development at the premises; [2.3] Employed Cengiz Colak (Colak) as a bricklayer.

[38]

[37] Nicolas was not aware of the system of bracing that was utilised during the construction of the Wall. [38] Fiore was aware of the system of bracing used on the day of the incident, however was not aware who installed it or when. Fiore was also not aware as to whether or not the bracing system had been assessed for safety. Instruction, training and supervision [39] Toolbox meetings run by Fiore and Harper were conducted at the premises for all workers at the premises on a regular basis. The meetings were documented. Nicolas, on behalf of Dasco, neither attended the toolbox meetings, nor did he follow up any of the recommendations made in the meetings. Nicolas relied on Fiore to follow up on any OHS recommendations, and may have received copies of the minutes from these meetings. [40] Dasco relied on Fiore to run the toolbox meetings and provide any other training to the workers at the premises as necessary. [41] Site inductions were conducted on the premises by Fiore and Avramov for all new workers, as well as on a regular basis for workers at the premises. [42] The evidence indicates that employees of Avrasya received site induction training however there is no evidence to suggest that this induction specifically addressed issues in relation to the bracing of cavity walls against adverse weather conditions. Employees of Avrasya were not trained in Avrasya's Safe Work Method Statement, however had read the document prior to commencing work on the day of the incident. [43] Employees of Avrasya were not supervised to the extent necessary to prevent the collapse of the Wall on the day of the incident. Weather conditions [44] Despite there being no witnesses to the incident, it appears likely that the Wall collapsed due to strong winds and/or a storm that hit the premises during the afternoon on the day of the incident. [45] A report from the Bureau of Meteorology noted that between the hours of 4pm and 5pm on the day of the incident, wind speeds reached a maximum of 48 km/h with maximum wind gusts reaching 80 km/h.

[45]

21 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 22 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. 23 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 24 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 25 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 26 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added) 27 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice... 28 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to. Considerations

[46]

29 The defendants have no prior convictions. Accordingly, as corporate defendants, the maximum penalty that may be imposed on United Admin and Dasco is $550,000. As an individual, the maximum penalty that may be imposed upon Mr Nicolas is $55,000. 30 Dasco was the head contractor and exercised control over the whole site. It had retained the services of United Admin to operate as project manager over the site. As the on-site project manager for Dasco, it was United Admin's responsibility to oversee contract administration, selection of subcontractors and general liaison. As the sole director of United Admin, Mr Fiore, as part of his arrangement with Dasco, 'accepted full responsibility on the site for all safety matters'. Accordingly, United Admin's responsibilities included implementing and overseeing the occupational health and safety aspects of the worksite. In that respect, United Admin was given complete on site control. 31 While United Admin provided overall management of the construction site through Mr Fiore, the site foreman was Mr Peter Avramov. He was contracted by Dasco through his company PAV NSW Pty Limited to be the site foreman. His job, amongst others, was described by Mr Nicholas as: [19] Peter was the Site Foreman and his role included monitoring of subcontractors work, quality and safety. He generally would have reviewed the Safe Work Method statements and he would be aware of various tool box meetings. Peter was required to follow up on tool box meetings and ensure compliance with matters discussed at those meetings. 32 It was Dasco who contracted with Avrasya and Mr Sahin to undertake the bricklaying work at the site. 33 Adjacent to the western boundary of the building under construction was the Hypec building. At the time of the incident, employees of Avrasya were in the process of erecting a double brick cavity wall on the third level of the western boundary wall of Building A on the site. At that point, the wall was, in part, adjacent to the roof of the Hypec building. The roof of the Hypec building was unusual, as the agreed facts disclose: [8] ... The roof of the adjacent premises, which was occupied by Hypec Information Technology Services Pty Ltd (Hypec) at 34 Herbert Street, West Ryde, New South Wales (Hypec building), was a sawtooth truss roof. That is, some points of the roof were higher than others. The peaks of the Hypec roof were higher than the base of the Wall. 34 As the brick wall under construction was some 21 metres in length and approximately 2.6 metres in height, at certain points along the boundary line, as the facts and photographs illustrate, the brick wall was higher than the roof of the Hypec building. 35 When that point had been reached in the construction of the wall, consideration would need to have been given as to what overhead fall protection measures were required in order to address the possibility of objects such as bricks falling from the construction site onto the Hypec roof. That consideration was imperative given that once the height of the brick wall rose above the height of the Hypec building, in whole or in part, and until the wall was properly anchored, its stability was susceptible to adverse weather conditions, particularly wind. 36 To a certain extent, that risk was recognised by the defendants as well as Mr Sahin on behalf of Avrasya. As Mr Fiore deposed: [16] A risk assessment that was carried out by Rick Harper, Peter Avramov, Murat Sahin, Seyfi Tuna and myself, identified the need to provide overhead protection to the adjoining roof in case of a brick or a tool being dropped or people walking on to the roof. At no time was it suggested by any of these people that the wall may collapse. I had never experienced a wall collapse. [17] To protect the adjoining roof we placed "planks" directly on the roof covered with formwork plywood. I personally observed the plywood on the roof next door. [18] The only other overhead protection available is scaffold protection (fall protection). This could not be provided due to the adjacent roof design, the fact that it was actually above the level of the floor for the large part and the construction process that had been devised by the architects, Mellor Gray Architects. 37 Mr Fiore does not indicate when the above risk assessment was conducted. It must have been at a time just before the incident because, on the evidence, it was only at or about that time that the height of the wall under construction had reached a point where it was, in part, above the roof of the Hypec building. 38 While the formwork plywood and planks may well have provided some overhead fall protection, it seems no consideration was given to the need for anything more robust, notwithstanding the relatively free standing nature of the brick wall under construction. Further, it cannot be said that adverse weather conditions are an unknown phenomena in the construction industry. 39 It is difficult to see how, during the discussions that resulted in the plywood being put in place as overhead protection, that no consideration was given to the need to stabilise and brace the wall. Although Mr Fiore did not have any specialised masonry knowledge or experience, it would seem reasonable to concede that if a single brick could fall onto the Hypec roof, the hazard of wall collapse whilesoever the brick wall was relatively freestanding and the risk to safety it represented should have been considered and addressed. In terms of risk assessment, what was done was clearly inadequate. 40 In any event, on the day of the incident it was clear the brick wall was only partially completed when work was stopped because of the hot weather. In short, it was still inherently unstable and, unless properly braced and supported, represented a foreseeable risk to safety. 41 It is relevant at this point to refer to my comments in my earlier judgment concerning the co-defendants, Avrasya and Mr Sahin. They are equally applicable to the defendants now before me. [30] The dimensions of the wall, the fact that it was a free standing structure on the third level of the building under construction, coupled with the wall's exposure to the elements and it's proximity to the roof of the adjacent office building, should have alerted Avrasya to the need to brace the wall and erect external scaffolding in order to prevent the possibility of the wall collapsing both inwards and outwards due to natural forces such as the weather. It was reasonably foreseeable that a risk to the safety of the site workers or damage to the neighbouring building and it's occupants would arise if appropriate safeguards such as bracing and scaffolding were not implemented. ..................

[47]

[46] Nevertheless, the need to stabilise the wall during it's erection by adequately bracing it was clearly a risk factor known to the defendants. That Mr Sahin braced the wall to the extent that he did is evidence of that. As well, the risk to safety if the wall was not properly stabilised was self evident. On any view, the hazard of wall collapse and the risk to safety it represented should have been identified on the defendants' occupational health and safety plan and, in particular, the safe work method statement for the job at hand. 42 As was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). 43 On the issue of foreseeability however, I reaffirm my finding in WorkCover v Sahin and Avrasya as follows: [45] I accept that, in all the circumstances, the combined weather factors of extreme heat and strong winds on the overall stability of the brick wall under construction were not readily foreseeable. 44 Any decision made as to how best to stabilise the unfinished wall would appear to have been left to Mr Sahin on behalf of Avrasya. If Mr Avramov was involved in the decision to brace the wall in the way Mr Sahin did, I cannot determine on the evidence. Certainly, on behalf of Dasco, Mr Nicolas' belief was as follows: [32] In relation to the risk to safety which was created by the combination of extreme weather conditions and the unfinished western wall (which could not be finished due to the effect of the extreme heat that day on workers) it was my expectation that the construction and bracing, if necessary, of the wall by the bricklayers would have been supervised, in the first instance, by Murat Sahin and his Foreman, Mr Khan. Further, it was my expectation that the Site Foreman, Peter Avramov, would have ensured that the wall was not left in an unsafe state on that day, despite the heat. Lastly, it was also my expectation that the Project Manager, Chris Fiore, assisted as he was by the OHS Consultant, Rick Harper, would have ensured that the bricklayers and the Site Foreman did not leave the site in a state which created a risk to safety. I believed that these layers of safety which I had ensured were built into the system of work on the site would have prevented an incident of the type that occurred on 1 December 2004. 45 Mr Nicolas clearly believed that once Avrasya was engaged as the subcontractor to undertake brick work on the construction site, responsibility for safety in relation to such work passed to Mr Sahin on behalf of Avrasya. As he stated: [21] Avrasya Construction Pty Limited ("Avrasya") were the bricklaying contractors on the job. Dasco's engagement with Avrasya was verbal (See Doc 27A, Vol. 2, Tab 11 of Prosecution Brief). I understood that as a licensed contractor, Murat Sahin, of Avrasya, knew the relevant Code more than any builders, as there could be up to twenty (20) different trades on the job. As far as the wall is concerned, it is my belief that Avrasya should have known the spacing of the braces. Although, the Code itself is very vague, it talks about spacing without giving regards to the height or thickness of the wall. [22] Avrasya were bricklayers and were engaged to carry out work in accordance with a Subcontractor Agreement (See Document 27A). At Clause 8 of this Agreement it reads: "8 Safety/Insurances

[49]

It was expected that experts in the field of bricklaying would know better than a builder about the relevant codes and that is why one would engage them. In Avrasya's statement, reference is made to bracing the wall by timber trusses and he had done this on multiple occasions and it was suitable. This is the assurance the builder gets on the job from experts, such as Avrasya. 46 To a certain extent, Mr Nicolas is correct. Equally however, as the building construction company overseeing the project, Dasco and Mr Nicolas had an obligation to ensure that subcontractors engaged on site complied with Dasco's occupational health and safety plan for that site. As that plan stated, as General Manager of Dasco, Mr Nicolas had 'overall responsibility for the safe conduct of work in all activities conducted by Dasco Construction Pty Limited'. 47 To the extent that Dasco, via Mr Nicolas, delegated that task to Mr Avramov and Mr Fiore, it does not remove Mr Nicolas' obligation through Dasco to ensure all work undertaken on site was done safely absent risks to safety. As Dasco's occupational health and safety plan stated in relation to harm minimisation: All existing parts of and areas within the site which are in proximity to the areas and parts of the site within which the Works are to be executed will be adequately protected at all times during the execution of the Works. 48 As is well established, as head contractor, Dasco's obligation to ensure safety cannot be transferred or delegated, consciously or otherwise, to some other person or entity: See WorkCover Authority of New South Wales v Fletcher Constructions Aust Pty Limited (2002) 123 IR 121 at [40] and [41] where Walton J, Vice-President said as follows: [40] I accept that the Act obliges corporations to engage appropriately qualified persons to ensure that "safety is pursued in an active and ongoing way" and that in meeting its obligations under the Act on a practical level, a corporation may undertake a number of different steps, one of which is the appointment of supervisors with the necessary skills, training and experience to ensure that work is carried out safely. [41] However, it was not, in my view, open to the corporate respondent in these proceedings to entirely delegate its obligations under the Act to a supervisor or manager, regardless of how well qualified he or she may be. The corporate respondent could not simply appoint a manager, instruct him to develop safe systems of work (including work methods and systems for training, supervision and the like) and then, having done so, turn its back on matters of occupational health and safety, taking no further steps to ensure that these systems of work, training and otherwise, had been adequately established and were being complied with.

[50]

49 In my view, the defendants' plea of guilty is evidence of their acknowledgement of that obligation. 50 On behalf of United Admin, Mr Fiore also believed that, between them, Mr Sahin and Mr Avramov had all safety matters under control. As he deposed: [26] I do not have expertise in masonry construction and rely upon the expertise of the architects to provide appropriate construction design and the masonry contractors to determine what process is used to build masonry structures such as walls. ................ [28] I was not advised about the requirements for bracing any masonry structure by Mr Harper, Mr Avramov, Mr Sahin, Mr Tuna or the architects. [29] On 1 December 2004, I arrived at the site at about 8 am. Construction was proceeding as normal, the site supervisor Peter Avramov was present and supervising the work. [30] I noted nothing out of the ordinary. In accordance with standard practice, at about 9 am, I left the Site and went to my office on Ryedale Road West Ryde where I did general administrative work. The site supervisor, Peter Avramov, remained in charge of the Site. To the best of my recollection, brickwork was proceeding on level 4 of Building A (the building at the front of the site). [31] At about 10 am on 1 December 2004, I noted an increase in the temperature. I recall checking to see that I had my air-conditioning on at the highest level. I then continued on with the administrative work. [32] At approximately 11 am, I received a telephone call from Peter Avramov who said words to the effect: It's extremely hot. Too hot for the men to keep working. I'm closing the Site and sending them home. [33] I said words to the effect: OK. Yes, it's incredibly hot. Let them go home. It's not safe to work in this heat. [34] I do not recall saying anything else. I have not seen any statement by Mr Avramov to WorkCover as to what steps he took to make the Site safe. Had I gone down to the Site, I would not have been able to claim any superior knowledge as to the bracing of the wall. 51 It is apparent that the roof of the Hypec building presented some difficulty with regard to appropriate overhead protection. The difficulty arose due to the fact that the majority of the roof was higher than the slab on site and that it was a saw tooth truss roof. Scaffolding had been erected around the perimeter of the building except for the side of the building abutting the Hypec building. The scaffolding was not installed as it was said the features of the roof made it impossible to install. 52 Quite apart from the obligations of Mr Sahin on behalf of Avrasya, the defendants had an obligation to ensure the job Avrasya was undertaking was properly risk assessed and safe work methods were in place. To a degree the defendants did that. 53 As earlier stated, United Admin was contracted by Dasco to provide construction management services for the site. On behalf of United Admin, Mr Fiore confirmed he personally accepted full responsibility for all safety matters on site. As well, the Dasco OHS plan stated that one of Mr Fiore's responsibilities was to give "...due consideration to safety aspects in the planning and implementation of works". 54 In order to meet the occupational health and safety needs of the site, Mr Fiore had retained the services of Rick Harper and Associates as a site safety consultant. Mr Harper was relied upon to design site safety protocols such as the OHS plan and to assist the contractors with their safe work method statements. 55 Mr Fiore stated that he: ... required both Mr Harper and Mr Avramov to keep me informed of all safety matters. For example, we had regular toolbox meetings to discuss matters as they arose, and when we were about to embark on a new task or stage of construction. I followed the advice of Mr Harper and Mr Avramov, and made some of my own suggestions.

[51]

56 Mr Fiore's affidavit evidence that he relied upon individuals whom he considered to be experts such as Mr Harper and Mr Avramov as well as Mr Sahin and Avrasya's experience to ensure the work was being done safely can only go so far. 57 Mr Harper may have devised the on-site occupational health and safety plan and be an expert as far as occupational health and safety was concerned. But he was only present on site on a fortnightly basis. Mr Fiore's responsibility for on-site occupational health and safety went beyond merely relying upon a purported expert such as Mr Harper to formulate the work site safety plan. It was Mr Fiore's responsibility to ensure that the work was carried out safely and that Mr Avramov, the site foreman who reported to him, was also rigorous in assessing and dealing with safety issues when overseeing subcontractors. 58 This was particularly important given that Mr Harper was not on site daily to be available to oversee subcontractors. If anything, that was the job of Mr Avramov and Mr Fiore. 59 There is no evidence from Mr Avramov that would assist the Court in understanding his actions on behalf of the defendants on the day of the accident. It is apparent Mr Avramov was involved in discussions as to the decision to put the plywood in place across the Hypec roof. 60 Beyond that, it is difficult to discern exactly what steps Mr Avramov took, in conjunction with Mr Fiore, to enforce Dasco's occupational health and safety plan on the site except in a somewhat rudimentary way. For example, the Safe Work Method Statement (SWMS) initially prepared by Avrasya was not reviewed and updated to reflect the work being undertaken on level 3 adjacent to the Hypec roof and the risk of damage to adjoining properties caused by the potential of falling objects, including the collapse of newly erected boundary walls at the premises. Further, the defendants had no organised safety committee on site. 61 As best as I can determine, when the decision was made to stop work because of the excessive heat on 1 December 2004, any decision to brace the wall was made by Mr Sahin on behalf of Avrasya. Certainly, Mr Fiore was not involved and neither was Mr Nicolas. As Mr Fiore stated: [34] ... I have not seen any statement by Mr Avramov to WorkCover as to what steps he took to make the Site safe. Had I gone down to the Site, I would not have been able to claim any superior knowledge as to bracing of the wall. 62 If Mr Avramov was involved in the decision with Mr Sahin to brace the wall in the manner he did, then he clearly failed to ensure the wall was properly braced and stabilised and that adequate perimeter safety measures were in place. As I determined in my judgment in relation to Avrasya and Mr Sahin: [52] Mr Sahin did not include the need to erect scaffolding in the safe work method statement for Avrasya because he did not consider that it was his responsibility to do so. It had been his experience on previous building sites that the builder was responsible for erecting perimeter safety measures, which included scaffolding. He also pointed to the contract between Avrasya and Dasco to undertake the bricklaying work, which stated, inter alia: The builder shall be responsible for: ................. 2.5 Providing full perimeter external scaffolding.

[54]

68 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 69 In my view, both general and specific deterrence are relevant considerations. No submissions were made to the contrary. 70 As co-defendants in the offences arising out of the incident, the principle of parity is relevant. The principle demands consistency in sentencing outcomes as between co-offenders determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability: see Lowe v R (1984) 154 CLR 606 and Postiglione v R (1997) 189 CLR 295. However, 'if there are relevant differences, due allowance should be made for them': Postiglione v R at 301. 71 Counsel for United Admin stated that the defendant's culpability was greater than that of Dasco and Mr Nicolas. I would agree. United Admin, through Mr Fiore, had full responsibility for all safety matters on site. As well, Mr Avramov, although engaged by Dasco, reported to Mr Fiore and clearly liaised with him on a daily basis in relation, inter alia, to safety matters. Dasco and Mr Nicolas, having appointed Mr Avramov and Mr Fiore through United Admin, were a step removed from the day to day activities and responsibilities of United Admin and Mr Avramov. 72 The issue to be determined is the relative culpability of United Admin vis-a-vis Avrasya and Mr Sahin. In that respect, I accept Mr Fiore's unchallenged assertion that his knowledge of bracing and wall support was limited. He looked to Avrasya and Mr Sahin in the first instance and, as site manager, Mr Avramov, in relation to safety measures to be adopted in the erection of the brick wall. Nevertheless, Mr Fiore acknowledged his involvement in the risk assessment carried out as to the need for overhead protection for the adjoining Hypec roof. As he acknowledged, no consideration was given as to the possibility the wall may collapse. As events transpired, that was an error of judgment. 73 Mr Fiore, on behalf of United Admin, was not without experience in the building and construction industry. As he said: [2] Since 1990, I have worked on 16 buildings ranging from luxury residential buildings to multi-storey unit blocks and commercial structures. [3] Neither I nor any company I have been a director or manager of have ever been prosecuted for a breach of the occupational health and safety legislation since I started work in the construction industry in 1990.

[55]

[5] In 1994, I completed an Associate Diploma in Applied Science (Building) at Sydney Institute of Technology. 74 Mr Fiore was not at the site when the decision was taken to stop work because of the heat. On the evidence, there was no discussion between Mr Avramov and Mr Fiore at that time about the need to brace the wall when work stopped for the day. While it could be said Mr Fiore should have asked Mr Avramov about that issue, I accept it was not a matter that, being removed from the site, Mr Fiore could reasonably be expected to have been raised. 75 On balance, taking the above matters into account, I am of the view that the culpability of United Admin is less than the culpability of Avrasya and Mr Sahin. 76 In the determination of penalty, the defendants are entitled to have taken into account the plea of guilty entered. In assessing the impact of the plea, the Court is guided by the decision of R v Thomson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration, reinforced as they are by s 22 of the Crimes (Sentencing Procedure) Act 1999. 77 Counsel for the prosecutor pointed out that the defendants did not enter their pleas at the earliest available opportunity. Initially, when all the matters arising from this incident came before the Court, all defendants entered a plea of guilty to their respective offence. Following further considerations, the present defendants, including Mr Fiore, sought leave to withdraw their pleas of guilty. Leave was granted and the matters were set down for hearing for five days commencing on 23 July last. As co-defendants, Avrasya and Mr Sahin adhered to their pleas of guilty and have been dealt with by the Court in my judgment earlier referred to. 78 On 20 July last, the Court was advised that the present defendants would be further reversing their pleas to guilty and requesting the hearing dates already allocated to be vacated. That was done and the matters proceeded before me on 27 July last as submissions on the pleas of guilty. In entering their respective pleas, the defendants did so in terms of the summonses initially filed. 79 Notwithstanding the late change of plea, counsel for the prosecutor did concede that there was still utilitarian value in their pleas as a lengthy and protracted hearing had been avoided. I agree. 80 Counsel for the defendants asked the Court to apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 in relation to the respective defendants. 81 Section 10 of that Act relevantly provides: (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed; (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years; (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. ..................... (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition; (b) the trivial nature of the offence;

[57]

(d) any other matter that the court thinks proper to consider. 82 The application of the provisions of s10 to an offence arising under the Occupational Health and Safety Act 1983 have been considered in prior decisions of this Court and more particularly in the decision of WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 and more recently WorkCover Authority of New South Wales v Menzies Property Services Pty Limited [2004] 136 IR 449. In particular, I note reference within Profab to the comments of Wright J President in WorkCover Authority of New South Wales v Ecolab Pty Limited (1999) 90 IR 413 and at 430 where his Honour noted the limited utility of comparing cases where provisions of the then s 556A (the statutory predecessor to s10 of the Crimes (Sentencing Procedure) Act) had been applied. On that issue his Honour stated: In my view, those matters turn purely upon their own facts and by virtue of the nature of the power that is being exercised when consideration is being given to the application of the ameliorative effects of s556A, each matter has to be considered in relation to its own particular circumstances and an analysis of earlier decisions and their particular approach to the discretion arising under the section are of limited value. (In any event, as observed by the prosecutor's counsel, a number of those matters involved significant contributory negligence by the injured worker. That is not the case here). 83 In WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Limited (2000) 100 IR 64 the Full Bench of the Court said at [21]: The judgment of the Full Court (Fisher CJ, Bauer and Cullen JJ) of the former Industrial Court in WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 101, is clear authority for the proposition that the discretion under s556A would rarely be available in significant offences against the legislation and any application for the benefit of the provision should be rigorously tested. 84 The need for a rigorous approach and the proper application of the provisions of s 10 to the offences under the Act is reinforced in Profab as follows: [24] Accordingly, when an application is made to a judge of this Court in sentencing proceedings under the Occupational Health and Safety Act for the exercise of the discretion under s556A, that will invariably occur in relation to a serious breach of the Act. The purpose of the statute, which is well known and often referred to in judgments of this Court, may be referred to as one for the benefit of the public generally and particularly employees at work to prevent, deter and punish breaches of health and safety requirements. Although the discretion under s556A is wide, it is not unfettered; rather, it is limited initially to a series of defined circumstances and then extended to 'any other matter which the court considers it proper to consider.'

[60]

[47] We consider the statements of principle in Profab Industries, summarised in Department of Mineral Resources v Berrima Coal and affirmed in Riley v Australian Grader Hire , as to the application of s10 of the Crimes (Sentencing Procedure) Act are correct and we apply those principles in the present matter. 86 In considering the facts and circumstances of the offences and the role of the respective defendants, including the acts and omissions of the corporate defendants and my assessment as to the objective seriousness of the offences, I am not persuaded the provisions of s 10 are applicable to them. The particulars to which the corporate defendants have pleaded guilty go directly to their overall culpability and their respective failures to monitor the worksite more directly in line with their responsibilities under the Act. Delegating that responsibility in the manner in which they appear to have done is not an adequate response to the onerous responsibility the Act requires. In short, they do not, in my view, meet the 'exceptional circumstances' test that s 10 requires. 87 In relation to Mr Nicolas, I take a different view. I accept that as one of two directors of Dasco, he put in place a comprehensive occupational health and safety plan for the project site. He proceeded to appoint persons, namely Mr Fiore via United Admin and Mr Avramov, via PAV NSW Pty Limited, to be wholly responsible, inter alia, for all aspects of safety on the site. Mr Fiore acknowledged as much when he stated that, as part of the overall arrangement with Dasco and Mr Nicolas, he personally accepted full responsibility for all safety matters on the site. 88 Likewise, in relation to Mr Avramov, his role as Site Foreman as asserted by Mr Nicolas, was to monitor subcontractors, the quality of their work and safety. That assertion was not challenged and there was no evidence from Mr Avramov to the contrary. 89 Mr Avramov has not been charged with any offences arising from this incident. As well, the prosecution has been granted leave to withdraw proceedings against Mr Fiore. It is understandable, given Mr Nicolas' further removed role from the immediate circumstances surrounding the incident, that he may feel a sense of injustice. On that issue, I refer to the decision of Wright J, President in WorkCover Authority of New South Wales v Walco Hoist Rentals Pty Limited and anor (No 2) [2000] 99 IR 163 at [34] where he said, correctly in my view, as follows: The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them . (emphasis added) 90 Having regard to the facts and circumstance before me, I am satisfied I can properly exercise the discretion available to me in favour of Mr Nicolas. I do so primarily because, on the material before me, to which no issue was taken, it is clear that in his role as a director of Dasco, Mr Nicolas had taken steps to appoint two persons who would be directly responsible for supervising the work being undertaken on behalf of Dasco. By all accounts, Mr Fiore and Mr Avramov were both aware of Dasco's occupational health and safety plan for the site. They were able to contact Mr Nicolas if there were any problems in carrying out the job at hand. They did not do so and, in my view, Mr Nicolas was entitled to assume there were no problems. Further, on the evidence before me, as a director of Dasco, Mr Nicolas had taken those steps that he saw as necessary to ensure safety matters were properly addressed on site. To the extent that did not occur, the culpability that flows is not, for the purposes of sentence, a culpability that should be visited upon Mr Nicolas as one of two directors of the corporate defendant who has already entered its plea of guilty. 91 In all the circumstances and taking account of the material referred to, I am satisfied that, in relation to Mr Nicolas, I can properly exercise the discretion available to me and discharge Mr Nicolas without conviction and penalty on the condition he enter into a bond to be of good behaviour for a period of eighteen months pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act. 92 Taking into account all the matters I have referred to, I determine penalty in these matters as follows:

At a glance

Court

Decision date

Before

Source

Judgment (63 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (19)

Cited By (1)