Workcover Authority of New South Wales (Inspector Paul Jorgensen) v Andrew Daoud [2006] NSWIRComm 37 (26 June 2006)

Last Updated: 26 June 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : WorkCover Authority of New South Wales (Inspector Paul Jorgensen) v Andrew Daoud [2006] NSWIRComm 37

FILE NUMBER(S): 5127

5128

HEARING DATE(S): 04/05/06

DECISION DATE: 16/05/2006

PARTIES:

PROSECUTOR

WorkCover Authority of New South Wales (Inspector Paul Jorgensen)

DEFENDANT

Andrew Daoud

JUDGMENT OF: Marks J

LEGAL REPRESENTATIVES

PROSECUTOR

Mr M P Cahill of counsel

Solicitor: Mr J Nguyen

Phillips Fox

RESPONDENT

Mr M L Shume of counsel

Solicitor: Mr J Jordan

Jordan Djundju Lawyers

CASES CITED: Inspector Jorgensen v Daoud [2005] NSWComm 135

WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd [2004] 136 IR 449

Regina v Dib [2003] NSWCCA 117

LEGISLATION CITED: Occupational Health and Safety Act 2000

Crimes (Sentencing Procedure) Act 1999

JUDGMENT:

- 1 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Marks J

Tuesday 16 May 2006

Matter No IRC 5127 of 2003

INSPECTOR PAUL JORGENSEN v ANDREW DAOUD

Prosecution under s.26 of the Occupational Health and Safety Act 2000

Matter No IRC 5128 of 2003

INSPECTOR PAUL JORGENSEN v ANDREW DAOUD

Prosecution under s.26 of the Occupational Health and Safety Act 2000

JUDGMENT

[2006] NSWIRComm 37

1 In these proceedings the defendant, Andrew Daoud, has pleaded guilty to two charges brought against him by Inspector Paul Jorgensen of the WorkCover Authority of New South Wales alleging breaches of sections 8(1) and 8(2) of the Occupational Health & Safety Act 2000 ("the Act"). In each case the charge alleges a contravention of these provisions by reason of the operation of s 26(1) of the Act. The charges are constituted by an amended application for order filed in the Court on 1 May 2006. It appears from information furnished during the course of the sentencing proceedings that about a month prior to the hearing the defendant agreed to plead guilty to each of the amended charges provided agreement had been reached on the production of an agreed statement of facts, presumably in a form acceptable to the defendant.

2 Each of the charges arises out of an incident which occurred at a building site on Margaret Street, Balmain on 14 September 2001. The defendant was the sole director of Formbrace Contractors Pty Ltd (“Formbrace”), employees of which company were injured when some formwork on which they were standing collapsed, causing them to fall to a lower level of the building site and injuring employees of electrical contractors who were also working at the site. It was alleged that Formbrace breached s 8(1) of the Act in that it failed to ensure that its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking at their place of work. Furthermore, it was alleged that that company breached s 8(2) of the Act in that it failed to ensure that persons not in its employment were not exposed to risks to their health or safety arising from the conduct of its undertaking at its place of work.

3 The process by which the defendant is alleged to have contravened the same provisions of the Act is set out in s 26(1), which is in the following terms:

s 26 Offences by corporations—liability of directors and managers

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that:

(a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

4 An agreed statement of facts was tendered into evidence and was in the following terms:

“1. At all material times the Prosecutor was an Inspector appointed under Division 1 of Part 5 and empowered by Section 106 of the Occupational Health and Safety Act 2000 to institute proceedings in this matter.

2. The Prosecutor has conducted investigations into the circumstances surrounding an incident which occurred on 14 September 2001, at the Balmain Shores project stage 3 in Margaret Street Balmain, in the State of New South Wales (Premises), in which Jozo Tipura, Stipo Tipura and Ryan Cross sustained injuries.

3. At all material times the Defendant is and was an individual residing at 28 Bowden Crescent, Connells Point in the State of New South Wales.

4. At all material times the Defendant, was the sole director of Formbrace Contractors Pty Limited (ACN 085 324 983) (Formbrace), a corporation now deregistered. The former registered office of Formbrace at 14 September 2001 was 524 Rocky Point Road, Sans Souci in the State of New South Wales.

5. At all material times, the Defendant was directly involved in:

(a) day to day management of the “formwork” business conducted by Formbrace, namely the design, delivery, erection, dismantling and removal of formwork used in the forming of concrete works on building sites in and around the Sydney metropolitan area;

(b) the negotiation of contracts for the design, delivery, erection, dismantling and removal of formwork by Formbrace, including, but not limited to, the contract for the design, delivery, erection, dismantling and removal of the formwork for use in construction of the subject premises; and

(c) in the tender interview for the design, delivery, erection, dismantling and removal of the formwork from the subject premises as a representative of Formbrace.

6. At all material times, Formbrace:

(a) employed Jozo Tipura (Jozo) and Stipo Tipura (Stipo) as formwork carpenters at the Premises;

(b) employed Vince Malozzi (Malozzi) as a foreman; and

(c) employed Andrew Andreou (Andreou) as Industrial Relations and Safety Coordinator;

7. At all material times Baulderstone Hornibrook Pty Limited (ACN 002

625 130) (Baulderstone) was the Principal Contractor at the

Premises.

8. On 10 August 2001, Formbrace entered into a contract with

Baulderstone Hornibrook Pty Limited (ACN 002 625 130) for the

design, delivery, erection, dismantling and removal of formwork and

falsework to Blocks J, K and S to be constructed on the Premises.

9. At all material times Ryan Cross (Cross) and Basem Taha (Taha)

were electricians employed by Tyco Asia Pacific Pty Limited trading

as O’Donnell Griffin (NSW) (ACN 003 905 093) at the Premises.

10. On 14 September 2001 Jozo and Stipo were constructing formwork

together at the Premises. The portion of the formwork on which Jozo

and Stipo were working was cantilevered formwork. Jozo was standing

on a piece of formply on the cantilevered portion of the formwork and

was preparing to cut the piece of formply decking on which he was

standing. Jozo had in place a string line to mark the cut on a piece of

form ply when Jozo requested Stipo flick the string line onto the

formply to mark the cut. But, as Stipo stepped onto the formwork deck

to stand alongside Jozo, the cantilevered section of the formwork,

including the piece of formply on which Jozo and Stipo were working

collapsed (incident).

11. As a consequence of the collapse, both Jozo and Stipo fell, together

with the formply sheets and other formwork components,

approximately 2.8 metres onto the concrete floor of the next level

below.

12. Further, at the time of the formwork collapse, Cross and Taha were

walking under the portion of the formwork deck on which Jozo and

Stipo were working. Taha had passed the point of collapse but, Cross

was hit by Jozo, Stipo and the falling formply.

13. Stipo struck the concrete floor in an area where starter bars for the lift

shaft wall protruded from the concrete floor of the next level below and

was trapped or jammed between some the starter bars. Jozo also

landed on the concrete floor of the next level below adjacent to the

area in which the starter bars for the lift wall were protruding from the

concrete floor.

14. As a consequence of the subject incident:

· Jozo sustained strains and sprains of his left shoulder, elbow and wrist, and bruising on the inside of his right leg;

· Stipo sustained fractures to both feet, a fractured right wrist and fractured ribs; and

· Cross suffered muscular pains in his back.

15. Investigations after the incident disclosed that Jozo, Stipo, Cross and

Taha received site induction training, and a general safety

instructions booklet, from Baulderstone on their first days of

employment at the Premises. Stipo actually received his induction

from Baulderstone on the morning of 14 September 2004, immediately

prior to the incident, as it was his first morning on this site.

16. Stipo received no site specific training, information or instruction from

Formbrace. Also, Stipo received no training, information or

instruction on the safe construction of formwork at the Premises.

17. On the morning, prior to the collapse, Jozo was shown a plan of the

work and discussed how to do the work with Mallozzi, the Formbrace

foreman with responsibility for supervising the area in which Jozo and

Stipo were working at the time of the subject incident. Stipo was

directed to plumb and cut the formply deck for the lift-well wall. The

discussion was not documented.

18. Jozo did not work on the construction of the cantilevered portion of the

formwork prior to the morning of the subject incident. Jozo did not lay

headers, the joists (or timbers), nor the piece of form ply that collapsed.

19. Further, at the time of the subject incident, the formwork deck on

which Jozo and Stipo were working exceeded the height of one

formwork frame fitted with standard fittings [ie standard frame with a

standard foot and a standard u jack capable of being adjusted to a

height of 1.8 metres]. The subject formwork deck was being erected on

top of standard frames fitted with additional frames, including

“telescopic inners”, that enabled the formwork deck to be constructed

at a height of about 3 metres above the level of the concrete floor on

which the frames were standing.

20. Neither Jozo or Stipo were provided with fall protection, or fall arrest

equipment, such as a harness.

21. Neither Jozo or Stipo were instructed to wear fall arrest equipment

while working at heights over 1.8 metres at the Premises.

22. Neither Jozo or Stipo were wearing fall arrest equipment at the time of

the incident.

23. No perimeter edge protection was provided by Formbrace in the area

of the incident as the area was still being erected.

24. Neither Stipo, nor Jozzo had been provided with a work method

statement for the construction of formwork at the Premises and in

particular, neither Stipo nor Jozzo had been provided with a work

method statement for the erection of the cantilevered formwork.in the

vicinity of the lift-well wall on which they were working at the time of

the subject collapse.

25. Further, Jozo and Stipo were not instructed by Formbrace to erect

barriers or signage preventing persons from entering the vicinity of

the formwork construction.

26. Investigations after the incident disclosed that the cantilevered

portion of the formwork deck was neither adequately nailed, nor

supported in accordance with the requirements of AS 3610 – 1995

being the Australian Standard with respect to the erection of

Formwork for Concrete. In particular, the cantilevered portion of the

formwork deck that collapsed projected approximately 900mm beyond

the last line of frames towards the area in which the wall for the

lift-well was to be formed up.

27. Subsequent to the incident, Formbrace revised its Work Method

Statement and developed a Work Method Statement [or JSA] for use

in the erection of cantilevered portions of formwork decks submitted it

to Baulderstone on 14 September 2001. The revised work method

statement specified cantilevered decks to be no more than 450 to

500m.

28. Further, investigations after the event established that no clear barriers or signage were erected by Formbrace for the purpose of preventing persons entering the area immediately below the portion of the formwork on which Jozo and Stipo were working at the time of the collapse.

29. Further, Baulderstone provided warning signs, material and barriers for use by sub-contractors at the Premises for the purpose of erecting barriers to prevent workers entering areas in which they may be exposed to risks, including risks associated with the erection of formwork overhead.

30. As a consequence of the acts and omissions of Formbrace, Jozo Tipura, Stipo Tipura, Cross and Taha were all exposed to risk of injury.”

5 In addition, there was tendered into evidence on behalf of the prosecution a number of documents, including photographs, and the defendant filed an affidavit, with substantial annexures, on which he was cross examined.

6 The defendant commenced working in the formwork industry in late 1987 or early 1988 and has carried on business on his own account in that industry since 1992. Initially he worked in residential construction but from 1995 he commenced working in the commercial sector. The defendant's evidence was to the effect that, predominantly, he incorporated a number of entities which were, in the main, job specific; that is, they were utilised for the purpose of one or more specific jobs only. In fact, the particular corporation whose employees were involved in this incident was placed into voluntary administration in 2004 and was deregistered in 2006 after the commencement of proceedings instituted against it by the prosecutor claiming breaches of the Act.

7 The defendant said that he currently employs four hundred persons through his corporate group entities throughout New South Wales and Queensland and that his "company" is currently engaged at five major construction sites. He said that the events giving rise to these proceedings were the first occasion upon which he or any company with which he is associated has been prosecuted for a breach of "any law".

8 It was the evidence of the defendant that at the time that the incident occurred he had engaged an occupational health and safety officer who had been directed to conduct safety induction for each and every employee working on a site. The induction was intended to cover all aspects of safety. As is made clear from the agreed statement of facts, neither employee of Formbrace had received any specific training or instruction from the occupational health and safety officer or, indeed, from anyone else.

9 It was the defendant’s evidence that he had relied on these policies and procedures being followed, though he admitted that no system had been implemented whereby compliance with the policies and procedures could be monitored.

10 The defendant's evidence was indicative of an enhanced commitment to occupational health and safety matters following the incident, including the engagement of additional personnel concerned with occupational health and safety matters and the improvement of the organisation's work systems and work practices.

11 Furthermore, there was evidence that the defendant’s organisation had invested approximately $9,000,000 in investigating, acquiring and introducing a new system of formwork which allowed formwork to be erected in a much safer manner than previously. The use of this new system in Australia was said to be pioneered by the defendant’s organisation.

12 The interrelationship between sections 26 and 8 of the Act is well established. See, for example, the decision of the Full Bench of this court in Inspector Jorgensen v Daoud [2005] NSWComm 135. The offences to which the defendant in these proceedings has pleaded guilty are offences under sections 8(1) and 8(2) of the Act. It is these matters which need to be addressed initially in terms of the question of penalty.

13 The starting point for the assessment of the appropriate penalty is the objective seriousness of the offences which, the defendant has conceded, were committed by the company. As is clear from the agreed statement of facts and other evidence tendered in the proceedings, the incident occurred in circumstances where the part of the formwork deck on which the company’s employees were working was not adequately secured, and there was a cantilevered section which created inherent instability. Furthermore, the employees concerned were working at a height of about 2.8 metres and had not had the benefit of any induction to any system of safe work methods used by the company. In addition, there were no barriers or warning signs to warn or exclude other persons who were working beneath the formwork from entering that particular area.

14 I agree with the submissions made on behalf of the prosecutor that, objectively, the breaches of sections 8(1) and 8(2) of the Act by the corporation were serious ones. Indeed, counsel for the defendant sensibly conceded as much.

15 In terms of the assessment of an appropriate penalty I am also obliged to take into account both general and specific deterrence. There can be no doubt as to the need to continually bear in mind the general deterrent effect of the imposition of penalties in the area of occupational health and safety in the building and construction industry. It was submitted on behalf of the defendant that, because of his commitment to occupational health and safety matters as expressed throughout his organisation, there was no necessity to take any specific deterrent effect into account in assessing penalty. Whilst I am prepared to moderate the quantum of penalty having regard to the defendant’s professed commitment to occupational health and safety matters and, indeed, to the apparent good record of the corporations of which he has been and is associated with since the incident, I will nevertheless take it into account, albeit to a lesser extent.

16 There are a number of areas of agreement touching upon those subjective factors which the court is entitled to take into account, to the benefit of the defendant, in mitigating the objective seriousness of the offences. It was agreed that the defendant had expressed contrition and remorse with respect to the injuries sustained by the company’s employees and had taken steps to ameliorate the impact of those injuries on them. The defendant had cooperated fully with the prosecutor in and about the investigation of the incident. Furthermore, the defendant, through the various organisations within his group, had demonstrated a commitment to occupational health and safety matters and had put into effect a number of measures designed to enhance compliance in a general way with the provisions of the Act.

17 In terms of subjective features, the prosecutor emphasised the nature and the extent of the involvement of the defendant in the conduct of the company. He was its sole director and, although he arranged for the employment of persons to attend to occupational health and safety matters, it was the defendant who was personally involved in signing off on the use of a safety management system and a safe work method statement, and who was ultimately responsible for the conduct of the company's operations. This argument was put specifically in connection with a submission made by the defendant that he should be afforded the benefit of an order under s 10 of the Crimes (Sentencing Procedure) Act 1999. That section is in the following terms:

s 10 Dismissal of charges and conditional discharge of offender

(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.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to release the person on a good behaviour bond.

(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B) Subsection (1) (c) is subject to Part 8C.

(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,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

(4) An order under this section has the same effect as a conviction:

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

18 The provisions of that section and its application to occupational health and safety matters has been recently considered by a Full Bench of this Court in WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd [2004] 136 IR 449. There is a general statement of principles to be found at paragraphs [43] to [60]. I approach these proceedings in a manner consistent with the expressions of principle therein contained. Without the necessity of referring to them in any detail, it is sufficient to acknowledge that the defendant in these proceedings would be required to establish particular circumstances in support of the application of the provision of s 10 so as to outweigh both the particular policy considerations which are inherent in the Act and the purpose for which the Act was formulated. In circumstances where there have been serious breaches of the Act against the background of this defendant's involvement in the company, it is not appropriate in my opinion to apply the provisions of s 10.

19 There was also a controversy between the parties as to the extent to which the defendant should be given the benefit of a discount by reason of the plea of guilty entered by him. I was referred by counsel for the prosecutor to the decision of the New South Wales Court of Criminal Appeal in Regina v Dib [2003] NSWCCA 117, and in particular the observations of Hodgson JA and Barr J in those proceedings. Having regard to the statement of principle referred to by their Honours (per Hodgson JA at paragraphs [3] to [6] and per Barr J at paragraphs [52] to [55]), I am of the opinion that, in the circumstances of these proceedings, the defendant is entitled to a discount for the utilitarian value of his plea of guilty, albeit of a much lesser order than the 25 percent which is generally accepted as being an appropriate discount for a plea of guilty entered at the earliest convenient and reasonable opportunity. Given the history of these proceedings, including the recent indication of a plea of guilty, I would assess that an appropriate discount for this matter would be 10 percent, exclusive of any discount applying by reason of the other subjective features to which I have earlier referred.

20 The maximum penalty which may be imposed is the sum of $55,000 for each offence. Both parties agreed that the principle of totality should be applied. In doing so, counsel for the prosecutor stressed that the legislature had seen fit to create separate offences for sections 8(1) and 8(2), albeit that these breaches might commonly overlap in circumstances arising out of the one incident, as is the case in these proceedings. Accordingly, it is inappropriate to subsume both offences within the one maximum penalty amount when considering the assessment of appropriate penalty. I agree with this submission and proceed accordingly.

21 Having regard, therefore, to the fact that the defendant has pleaded guilty to two offences within the context of the application of the principle of totality, the fact that this was a first offence and that the defendant is entitled to the benefit accordingly, the fact that it was acknowledged by the prosecutor that in all the circumstances the defendant was “a good industrial citizen”, and having regard to the objective and subjective features to which I have earlier referred, I intend imposing penalties in both matters totalling the sum of $20,000 and apportioning $10,000 with respect to each offence.

22 The prosecutor sought a costs order and a moiety with respect to each charge.

23 The defendant opposed the making of a costs order, relying on the circumstances in which the offences occurred. In my opinion there is no good reason why, in the exercise of discretion, a costs order should not be made against the defendant. The order for a moiety was not opposed.

Orders:

1. I find the defendant guilty of each of the charges brought against him and he is convicted accordingly.

2. The defendant is to pay a monetary penalty of $10,000 with respect to each of the charges, with a moiety to the prosecutor.

3. The defendant is to pay the costs of the prosecution in an amount assessed by the court in default of agreement.

4. Liberty to apply with respect to the assessment of costs.

LAST UPDATED: 17/05/2006