Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Estreich v Sangari [2012] NSWIRComm 37
• Hearing dates: 20 April 2012
• Decision date: 01 May 2012
• Jurisdiction: Industrial Court of NSW
• Before: Haylen J

Decision

a)the defendant, Ghazi Sangari, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act, 2000 (by operation of s 26(1)) as particularised in Matter No IRC 321 of 2011, to which the defendant entered a plea of guilty;

(b)the defendant is fined the sum of $22,500 with half that amount to be paid to the prosecutor by way of moiety;

(c)the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(2) - head contractor provides scaffolding for use by sub-contractors - sub-contractor working at height - employee falls because head contractor commences to dismantle scaffolding and fails to notify sub-contractors of its unsafe state - guilty plea entered by corporation and director - corporation in liquidation by time of sentence hearing and prosecution withdrawn - failure to ensure sub-contractors not exposed to risk of falling - failure to provide safety devices - failure to provide adequate information, instruction or training - failure to provide safety induction - lack of safe work method statement - no risk assessment - employee paralysed from chest down - serious breach - general and specific deterrence - early plea and other subjective factors considered - head contractor found to be substantially responsible for risk and accident - penalty imposed
• Legislation Cited: Occupational Health and Safety Act 2000
• Cases Cited: Inspector Estreich v Sidaoui [2012] NSWIRComm 38
• Category: Principal judgment
• Parties: Inspector Phillip Estreich (Prosecutor); Ghazi Sangari (Prosecutor)
• Representation: Mr P Ginters of counsel (Prosecutor); Mr R E Lee of counsel (Defendant); Crown Solicitor's Office (Prosecutor)
• File Number(s): IRC 321 of 2011

Judgment

1 In 2009 GEC Consulting Group Pty Ltd ("GEC") was engaged by TAFE

NSW to undertake construction work at the TAFE Western Institute, Castle Hill College ("TAFE"). Mr Ghazi Sangari was the sole director of GEC and had overall responsibility for operation of the company. The construction work undertaken by GEC concerned the development of a linkway and some minor modifications connecting buildings "A" and "B" at the site. The construction work was valued at over $360,000 and Mr Sangari, as the representative of GEC, was in charge of the site.

2 Prior to the end of April 2009 GEC sub-contracted Mr Walid Sidaoui to undertake construction work at the site, including the cutting back of the fascia to the building line. Mr Sidaoui traded as Wallywood Carpentry and Joinery and employed Mr Bilal Yassine.

3 On 30 April 2009 both Mr Sidaoui and Mr Yassine were undertaking guttering work on Block "A" from scaffolding approximately four metres above ground level. This work was nearly finished when a coffee break was taken and Mr Sidaoui left the site to purchase some additional down piping. At some point before Mr Yassine and Mr Sidaoui returned to the scaffolding to resume work, Mr Sangari began removing sections and dismantling the scaffolding. The scaffolding top rails and return rail and the mid-rails and toe boards were removed as well as the bracing. Mr Sangari had commenced dismantling the scaffolding in order for the next scheduled building work to commence. He though Mr Sidaoui and Mr Yassine were finished or that they were at a later stage proposing to complete the guttering work.

4 Mr Sangari left the site without informing Mr Yassine and Mr Sidaoui that he had partly dismantled the scaffolding and that it was unsafe for use. The scaffolding was not danger tagged nor was there any notice attached prohibiting use of the scaffolding because of its unsafe state. After Mr Sangari left the site, Mr Yassine and Mr Sidaoui climbed the scaffolding to conclude their work. Mr Yassine fell from the scaffolding where there was no protective railing and was seriously injured.

5 Inspector Estreich, after investigation of this workplace accident, commenced proceedings against GEC and Mr Sangari alleging a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act") and the Inspector also commenced proceedings against Mr Sidaoui for a breach of s 8(1) of the Act. This judgment should be read in conjunction with the judgment in Inspector Estreich v Sidaoui [2012] NSWIRComm 38, a case particularised in similar terms.

6 At the first directions hearing before the Court (and after case conferencing had taken place), guilty pleas were entered by both GEC and Mr Sangari. The sentencing hearing, however, was deferred until after the contested proceedings then involving Mr Sidaoui (who had entered a plea of not guilty) were completed. When Mr Sangari came before the Court for sentencing, GEC had been placed in liquidation and by leave of the Court, the prosecution of GEC was discontinued.

7 On the sentence hearing concerning Mr Sangari the prosecutor tendered an Agreed Statement of Facts with a number of annexures. The annexures comprised the following documents: a factual inspection report compiled by a WorkCover Inspector; a number of photographs of the work site showing the partially demolished scaffolding at Block "B" at TAFE; a copy of a GEC project occupational health and safety plan being a Site Specific Safety Management Plan Policy and Procedure Manual for the Castle Hill College contract; a copy of a prohibition notice issued on the day of the accident requiring GEC to immediately cease using the scaffolding until it was rectified or removed; and, a prior conviction report that indicated that Mr Sangari had no previous occupational health and safety convictions. During the course of the hearing the prosecutor also tendered a WorkCover notice to GEC under s 62 of the Act, a letter from GEC responding to that request and an incident report prepared by GEC concerning the accident. The Agreed Statement of Facts appears as an annexure to this judgment.

8 Mr Sangari was represented by counsel at the sentencing hearing and gave oral evidence. He stated that he was a civil engineer and at the date of the accident in 2009 he was engaged as a construction supervisor employed by GEC and he was also the sole director of that company. Mr Sangari spoke of arriving at the site on the day of the accident and seeing Mr Sidaoui and Mr Yassine. He accepted that he had begun dismantling the scaffolding and had not told Mr Sidaoui that it was unsafe to use the scaffolding. After Mr Yassine fell and was injured Mr Sangari prepared an incident report and engaged a consultant to address and review the incident and the procedures to be adopted to avoid a future incidents of this nature. The consultant advised Mr Sangari of the measures required to protect those working at heights and how to instruct contractors working under GEC, including the use of toolbox talks. As a result of the consultant's report, Mr Sangari adopted better communications with contractors and better documentation.

9 In April 2007 GEC was placed in administration having been sued by insurers as a result of the accident. Mr Sangari had visited Mr Yassine on several occasions and had offered him a draughtsman's position and training for that position in light of his injuries and incapacity. Mr Yassine's parents did not wish him to have further contact and so Mr Sangari did not pursue this matter with Mr Yassine. He said that he "felt" for Mr Yassine.

10 In relation to the circumstances of the accident Mr Sangari agreed that, in future, he would avoid such an incident by advising contractors not to use the scaffolding or wait for them to leave before commencing the dismantling work. Another alternative was to send the contractors home and advise them to return when the scaffolding had been re-erected and was safe for use. He accepted his responsibility "to a degree" for what had occurred. He had co-operated with the WorkCover Inspector.

11 In cross-examination Mr Sangari said that he was still working in the building industry although he was now consulting rather than working on the tools. He was involved in small commercial and domestic work.

12 Mr Sangari had not only produced an incident report in response to the

s 62 notice but for the purposes of these proceedings had also attached a three-page handwritten document concerning the accident which he had not forwarded to WorkCover with the accident incident report. He had not thought that those notes were then part of the incident report although he had been advised to the contrary after the event. In the written notes he recorded a conversation with Mr Sidaoui at the hospital when Mr Sidaoui said that, on the day of the incident, Mr Yassine had told him that he could not see and that he did not want to come to work. The handwritten notes represented what Mr Sangari thought had happened on the day and the reasons for it. He confirmed that he did not tell Mr Sidaoui that the scaffolding was being dismantled.

13 In relation to his personal financial circumstances Mr Sangari said that, at the time of the accident, he was earning approximately $40,000 per year but now in his role as a consultant he was earning approximately $70,000 per year. Before GEC was liquidated the largest construction contract it had been awarded was for the sum of $5000,000. At the time of the accident GEC possessed no assets and had only a small amount of money in the bank. An accountant had advised Mr Sangari to place GEC into liquidation because of legal action taken against the company: the company was unable to satisfy a damages claim. In further cross-examination Mr Sangari said he owned a car and had a computer but was living in a family house owned by his mother. He had been living there for the past four to five years. He had no investment properties, shares as assets.

14 At this sentencing hearing, Mr Sidaoui was given leave to appear and was legally represented. Mr Sidaoui gave evidence of speaking with Mr Sangari at the hospital after the accident but denied saying that Mr Yassine had told him that day that he could not see and did not wish to come to work. Mr Yassine had told him that his family had been arguing and that had upset him: because of this he did not wish to come to work. Mr Yassine had not made any mention of not being able to see. The Court accepts the evidence of Mr Sidaoui in relation to this matter.

DELIBERATION

15 In this case there can be no doubt that the offence committed by Mr Sangari and GEC represented a most serious breach of the Act. Working at heights is a common occurrence in the construction industry and the risks associated with such work was acknowledged in GEC's site safety documentation. In this case Mr Sidaoui and Mr Yassine were working at a height of four metres and the risk of falling was clearly foreseeable. The extraordinary aspect of the present case is the fact that Mr Sangari began demolishing the scaffolding thereby rendering it unsafe for use while both Mr Sidaoui and Mr Yassine were present at the site. Mr Sangari apparently had in mind that the scaffolding was to be demolished to permit the next stage of the work to commence but it is difficult to understand how he could be in any doubt that the work of the two men was not yet complete, at least from the absence of the last length of guttering that was needed to complete the task. There were a number of fundamental and simple steps that Mr Sangari could have taken to address the work situation and avoid the risk: he could have told the men to cease work and resume at a later time when the next stage of the work was completed; he could have asked them to urgently complete the work so that he could demolish the scaffolding; he could have told them that he was going to demolish the scaffolding and/or he could have placed safety tags and signs on the scaffolding prohibiting its use because of its unsafe state.

16 Counsel for the prosecutor submitted that the offence should be assessed as being serious and falling in the "mid to upper end of the range of penalties available to the Court." Counsel for Mr Sangari accepted that this was a serious offence that fell in the middle and above range of penalties open to the Court. It was conceded that the risk was foreseeable and that there were a number of quite simple and available steps to avoid that risk. While it is accepted that a risk to safety can exist in the absence of a workplace injury, it is often the case that the nature of an injury received provides evidence of the seriousness of the risk. This is such a case. In this accident Mr Yassine fell four metres and is now paralysed from the chest down as a result. His life has changed forever. There is every possibility that a fall from this unsafe scaffolding could have resulted in fatal injuries. The Court concurs with the submissions for both parties that this was a serious breach falling in the middle to higher range of penalties available to the Court.

17 There was some reference in submissions to the fact that the removal of the railings and other parts of the scaffolding were visible to the two workers, thus carrying the suggestion that the workers could have avoided the risk. Counsel for the defendant, nevertheless, readily accepted that the obligation remained with GEC and Mr Sangari to provide a safe system of work and that they had failed to do so. In his oral evidence in his own case, Mr Sidaoui spoke of his usual practice of checking scaffolding at the commencement of work but the circumstances here were different: work had already commenced and Mr Sangari had personal contact with both the workers. When Mr Sidaoui left the site to procure further materials and returned to resume work, he was likely to proceed on the basis that the scaffolding was in the same state as it was when he commenced work that morning. It is almost inconceivable that, on a work site where only three people were present, that steps would be taken to demolish the scaffolding after work had commenced on the day and had not been completed and to do so without telling the persons who were using that scaffolding.

18 This is a case where both general and specific deterrence should form a significant part of the penalty to be imposed. As earlier observed the use of scaffolding in the construction and building industry is widespread and the risk of falling is well understood. The present case is a rather extraordinary example of the need for employers to remain vigilant in relation to workplace safety and to communicate effectively with their employees and those who are at their place of work about issues to safety, especially where safety equipment is fundamentally altered during the course of a working day. In relation to specific deterrence Mr Sangari continues to work in this industry in small commercial and residential developments but now as a consultant. He remains engaged in a capacity where he can influence safety methods and safety approaches at a worksite and it is therefore appropriate for specific deterrence to have a significant bearing on the ultimate penalty.

19 As to the relative culpability of the two defendants, the Court repeats its conclusion as contained in [31] of the Sidaoui judgment:

Although the particulars in each case were similar the Court is in no doubt that Mr Sangari bears a much more significant responsibility for this risk and the resultant accident than Mr Sidaoui. GEC and Mr Sangari were in control of the site and controlled the scaffolding - Mr Sidaoui (and Mr Yassine) were using the scaffolding and it was chekced by Mr Sidaoui at the start of work each day. The partial dismantling of the scaffolding during the day while further work was able to be performed and without warning the contractors was an inexplicable act carried out by Mr Sangari.

20 There were some subjective factors identified by counsel for the defendant. Most significantly the defendant entered a guilty plea (as did GEC) on the first directions listing before the Court. This, therefore, is an appropriate case for applying a discount of 25 per cent for the early plea. Counsel for Mr Sangari submitted that the defendant accepted that he made a fundamental error at the site on the day of the accident and that he did so at the earliest opportunity. The Court accepts that Mr Sangari has accepted responsibility for this accident and the risk to safety present at the site on the day and also took steps to offer comfort and alternative work to Mr Yassine although that offer was not taken up as a result of Mr Yassine's parents not wishing to have further contact with the defendant. Mr Sangari has had approximately 15 years' experience in this business, including the period during which GEC operated. The fact that he has participated in this inherently dangerous industry for a considerable period without coming into breach of the Act is, at least, some evidence of his usual approach to safety at the workplace. Being a first offender he is entitled to the leniency usually accorded to such a defendant. There was some limited evidence as to his earning capacity but there was no suggestion that he had no capacity to meet a significant fine having regard to the maximum penalty applicable for this offence. Should Mr Sangari find difficulty in satisfying these orders in total he is able to apply to the Registrar for time to pay.

ORDERS

21 Having regard to the abovementioned matters, the Court makes the following orders:

(a)the defendant, Ghazi Sangari, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act, 2000 (by operation of s 26(1)) as particularised in Matter No IRC 321 of 2011, to which the defendant entered a plea of guilty;

(b)the defendant is fined the sum of $22,500 with half that amount to be paid to the prosecutor by way of moiety;

(c)the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

ANNEXURE

AGREED STATEMENT OF FACTS

1.At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("Act") and empowered under section 106(1) of the Act to institute proceedings in this matter.

2.GEC CONSULTING GROUP PTY LTD is a corporation with its registered office c/- MH Accounting Services located at Level 1, 58 Restwell Street, Bankstown, in the State of New South Wales ("GEC").

Background

3.At all material times GEC was an employer involved in the design and project management of residential and commercial developments.

4.At all material times Ghazi Sangari ("Mr Sangari") was the sole director of GEC. Mr Sangari had overall responsibility for the running of GEC.

5. In 2009 GEC was engaged by TAFE NSW to undertake construction work at the TAFE Western Sydney Institute, Castle Hill College, Castle Hill ("site").

6.The construction work related to the development of a linkway and some minor modifications for connecting buildings "A" and "B" at the site.

7.The construction work was valued at $365,000.

8.Mr Sangari was the representative of GEC in charge of the site.

9.At a point in time prior to 30 April 2009 GEC subcontracted Mr Walid Mohamad Sidaoui (trading as Wallywood Carpentry and Joinery) ("Mr Sidaoui") to undertake some construction work at the site, including "[c]utting back the fascia to the building line."

10.As at 30 April 2009 Mr Bilal Yassine ("Mr Yassine") was, and had been since approximately 1999, employed by Mr Sidaoui.

The Incident

11.On 30 April 2009 Mr Sidaoui and Mr Yassine were undertaking guttering work on a building known as "Block B" at the site. This involved them working on a scaffold approximately 4 metres above ground level ("Scaffold").

12.Prior to the incident occurring Mr Sangari had begun the process of removing and dismantling the Scaffold.

13.Mr Sangari removed one of the Scaffold's top rails and its return rail, the Scaffold's midrails and toe boards. In addition, bracing from the Scaffold was removed.

14.Mr Sangari had begun dismantling and removing the Scaffold so that the next scheduled building works could commence, because he thought Mr Sidaoui and Mr Yassine were finished and/or because he thought Mr Sidaoui and Mr Yassine would be putting the guttering on at a later stage when the building works were nearing completion.

15.The effect of Mr Sangari partially dismantling the Scaffold was that it was no longer fit for purpose as a secure working platform. By the removal of fall prevention measures (handrails) and components of the scaffold persons became exposed to falls of up to 4 metres from an unprotected edge.

16.Mr Sangari did not place any warning signs or danger tags on the Scaffold to warn others that it was incomplete and ought not to be used.

17.At a point in time after Mr Sangari had started to dismantle the Scaffold he left the site.

18.Prior to Mr Sangari leaving the site he did not tell Mr Sidaoui or Mr Yassine that the Scaffold was not fit for use.

19.Following a coffee break, and after Mr Sangari had left the site, Mr Sidaoui and Mr Yassine recommenced the work at height from the (incomplete) Scaffold.

20.Mr Sidaoui's evidence to Inspector Estreich is that when he recommenced work at height with Mr Yassine after their coffee break Mr Sidaoui was not aware that parts of the Scaffold had been removed.

21.Whilst working from the (incomplete) Scaffold Mr Yassine fell to the ground ("Incident").

22.As a result of his falling from the Scaffold Mr Yassine suffered spinal injuries at the T6 vertebra and a closed head injury with bleeding to the brain. Mr Yassine remains paralysed from the chest down.

Failure to ensure that the Scaffold was complete prior to work being undertaken; failure to ensure that warning signs or danger tags were attached to the incomplete Scaffold

23. As set out at paragraphs 12-18 above, prior to the Incident Mr Sangari had removed parts of the Scaffold, rendering it unfit for use. He then proceeded to leave the site without informing either Mr Yassine or Mr Sidaoui that he had partially dismantled the Scaffold.

24.On 30 April 2009 GEC did not ensure that, prior to any work being undertaken by Mr Yassine and Mr Sidaoui, all top rails, end rails and bracing were in situ on the Scaffold that was used to perform the work, so as to ensure that Mr Sidaoui and Mr Yassine were not exposed to risks to their health or safety while they were at GEC's place of work.

25.On 30 April 2009 GEC did not ensure that there were signs or danger tags placed on the Scaffold to warn others who might be working on the Scaffold that it was incomplete.

Failure to provide fall arrest devices

26.Whilst working from the (incomplete) Scaffold neither Mr Sidaoui nor Mr Yassine were provided by GEC with, or wearing, fall arrest devices such as safety harnesses or similar devices that would have been capable of arresting a fall from height to the ground.

Failure to ensure provision of adequate information, instruction and training

27.Prior to the Incident GEC did not ensure that Mr Sidaoui and Mr Yassine were provided with any or any adequate information, instruction and training to ensure that they did not perform work at height unless:

a.a stable and secure scaffold, with all rails and bracing was in situ; and/or

b.they used fall arrest devices, such as harnesses or similar devices if working from a scaffold that had been partially dismantled.

28.In particular:

c.prior to the Incident GEC did not provide Mr Sidaoui with any paperwork or documents in relation to safety at the site.

d.prior to the Incident GEC did not give Mr Yassine any information about safety and safety hazards at the site.

Failure to ensure provision of adequate induction

29.Prior to the Incident GEC had a "Site Specific Safety Management Plan Policy and Procedure Manual" for the site ("Manual"). The Manual provided, amongst other things:

a."Site Induction: All persons working or visiting the site must attend a Site Induction ... ."

b.For a site induction register.

30.Notwithstanding the above GEC did not have induction records for Mr Sidaoui or Mr Yassine for the period prior to the Incident.

31.GEC did not ensure that Mr Sidaoui and Mr Yassine were provided with any or any adequate induction to the site in which it was explained to them that they were not permitted to be working at height:

a.unless a stable and secure scaffold, with all rails and bracing was in situ; and/or

b.if a scaffold used to perform the work had been partially dismantled, such that some of its rails and/or bracing had been removed, unless they used fall arrest devices, such as harnesses or similar devices.

Safe Work Method Statements

32.Prior to the Incident GEC did not require that Mr Sidaoui or Mr Yassine provide a written safe work method statement for work at the site.

Failure to ensure adequate risk assessment

33.The Manual provided, amongst other things:

a."Height Work must be in accordance with WorkCover requirements".

b. "SWMS have been prepared for all work activities assessed as having a safety risk. Particular attention has been paid to work activities with a high safety risk (for example working at heights ...) ... ."

c.For risk assessments to be undertaken.

34.Notwithstanding the above, GEC did not ensure that a risk assessment or an adequate risk assessment was conducted at the site to identified the risk of persons falling from height to the ground and the means by which it could be controlled, such as:

a.the use of fall arrest devices, such as harnesses or similar devices, if working at height from a scaffold that had been partially dismantled; and/or

b.prior to commencing work at height, the carrying out of an inspection of any scaffold that was to be used to ensure that all rails and bracing on the Scaffold were in situ.

Systems in place after the incident

35.On 30 April 2009 a Prohibition Notice was issued to GEC which required it to immediately cease using scaffolds at Blocks "A" and "B" at the site until:

"1.They are inspected and rectified by a competent person (scaffolder) and a copy of that certification is faxed to me.

2.Alternatively the scaffolds can be removed from site.

3.Your attention is drawn to OHS Regulation 2001 Clause 56.

4.Your attention is drawn to Australian Standard AS 1576 Pt 1. Scaffolding General Requirements.

5.Your attention is drawn to the WorkCover Guide 2004 Safe Work at Heights (copy provided)."

36.The Prohibition Notice was complied with by means of the removal of the scaffolds from buildings A and B on the site.

37.Following the Incident GEC conducted an investigation into the Incident, albeit no investigation report is available.

38.Following the Incident GEC engaged a consultant to review the Incident and provide advice as to how to prevent future incidents.

Decision last updated: 01 May 2012