Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Estreich v Sidaoui [2012] NSWIRComm 38
• Hearing dates: 18 November 2011
• Decision date: 01 May 2012
• Jurisdiction: Industrial Court of NSW
• Before: Haylen J

Decision

(i)The defendant, Walid Mohamad Sidaoui, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 322 of 2011, to which he entered a plea of guilty;

(ii)the defendant is fined the sum of $10,000 with half that sum to be paid to the prosecutor by way of moiety;

(iii)the defendant is to pay the costs of the prosecutor in the sum of $8,500.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) - contractors working at height on scaffolding - employee falls because head contractor commences to dismantle scaffolding and fails to notify other contractors of its unsafe state - not guilty plea initially entered - plea of guilty offered day before three-day trial commences - failure of contractor to check scaffolding during work - failure to provide safe work method statement and risk assessment - employee paralysed from chest down - serious breach established - general and specific deterrence - subjective factors considered - limited financial capacity to meet penalty - head contractor found to be substantially responsible for risk and accident - penalty imposed
• Legislation Cited: Fines Act 1996; Occupational Health and Safety Act 2000
• Cases Cited: Inspector Estreich v Ghazi Sangari [2012] NSWIRComm 37
• Category: Principal judgment
• Parties: Inspector Phillip Estreich (Prosecutor); Walid Mohamad Sidaoui (Defendant)
• Representation: P Ginters of counsel (Prosecutor); S Hopper (solicitor) (Defendant); Crown Solicitor's Office (Prosecutor); Queen Street Chambers (Defendant)
• File Number(s): IRC 322 of 2011

Judgment

1 The defendant, Walid Mohamad Sidaoui, has been charged with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). This charge arises from a workplace accident that occurred in late April 2009 at a construction site where work was being undertaken in relation to the TAFE Western Sydney Institute ("TAFE") at Castle Hill.

This judgment should be read in conjunction with the judgment in Inspector Estreich v Ghazi Sangari [2012] NSWIRComm 37.

2 For a number of years the defendant carried on a carpentry and joinery business trading as Wallywood Carpentry and Joinery. The business was not undertaken by an incorporated entity but was personally pursued by Mr Sidaoui. It was in this capacity that the defendant was engaged at the construction site by the principal contractor, GEC Consulting Group Pty Ltd ("GEC") whose sole director was Mr Ghazi Sangari. GEC Consulting Group had sub-contracted the defendant to undertake construction work at the site, including cutting back the fascia to the building line and installing guttering.

3 On the day in question Mr Sidaoui was working at the construction site with his employee, Mr Bilal Yassine. The defendant and Mr Yassine were working from scaffolding approximately four metres above the ground. One of the top rails of the scaffold, its return rail, the mid-rails, toe boards and bracing had been removed. While working on the scaffold in this condition, Mr Yassine fell off the end of the scaffold and suffered serious injuries, namely, spinal injuries, a closed head injury with bleeding to the brain resulting in Mr Yassine becoming paralysed from the chest down, a condition that will endure for his lifetime.

4 After investigating this accident, Inspector Estreich commenced proceedings against Mr Sidaoui for a breach of s 8(1) of the Act. The Application for Order alleged that the defendant, being an employer, failed by his acts or omissions as particularised, to ensure the health, safety and welfare at work of his employee, Bilal Yassine. The particulars of the offence were as follows:

The particulars of the risk are:

(a)There was a risk of Mr Yassine falling from height to the ground.

The particulars of the charge are that:

(b)The "work" referred to in these particulars refers to construction work, including the installation of guttering, on a building known as "Block B" at the site.

(c)The defendant did not ensure that, prior to any work being undertaken, all top rails, end rails and bracing were in situ on the scaffold that was used to perform the work, so as to ensure Mr Yassine's health, safety and welfare at work.

(d)The defendant did not ensure that Mr Yassine was provided with any or any adequate information, instruction and training to ensure that he did not perform work at height unless a stable and secure scaffold, with all rails and bracing, was in situ that was capable of preventing the risk, so as to ensure Mr Yassine's health, safety and welfare at work.

(e)The defendant did not ensure that Mr Yassine was provided with any or any adequate induction to the site in which the defendant, or someone on his behalf, explained to Mr Yassine that he was not permitted to be working at height unless:

i.a stable and secure scaffold, with all rails and bracing, was in situ that was capable of preventing the risk, so as to ensure Mr Yassine's health, safety and welfare at work.

(f)The defendant did not provide Mr Yassine with a written Safe Work Method Statement for the work at the site, so as to ensure Mr Yassine's health, safety and welfare at work.

(g)The defendant did not ensure that a risk assessment, or an adequate risk assessment, was conducted that identified the risk at the site and the means by which it could be controlled, such as:

i.the carrying out of an inspection of any scaffold that was to be used, prior to commencing work at height, to ensure that all rails and bracing on the scaffold were in situ, so as to ensure the health, safety and welfare at work of Mr Yassine.

As a result of the defendant's acts and omissions, Mr Yassine was exposed to the risk at the site. Mr Yassine's injuries were a manifestation of that risk.

5 Inspector Estreich also commenced proceedings against GEC and its director, Mr Sangari, alleging a breach of s 8(2). Pleas of guilty were entered in these prosecutions but the present defendant, Mr Sidaoui, initially entered a plea of not guilty. In those circumstances the proceedings against GEC and Mr Sangari were stood over to await the conclusion of the prosecution against Mr Sidaoui. The trial in Mr Sidaoui's case was set down for a three-day hearing but on the day before the matter was listed, the legal representatives for Mr Sidaoui informed the prosecutor that a plea of guilty would now be entered. The Court was informed of these developments in the afternoon before the matter was to commence. On the following day the guilty plea was formally entered and on the application of the parties, the sentencing hearing was listed for the third (and last) day for which the trial had been set down. Except for matters possibly arising as a result of the adjourned proceedings against GEC and Mr Sangari, the sentencing hearing was concluded on that day.

6 The evidence for the prosecutor consisted of an Agreed Statement of Facts together with a number of annexures. Those annexures included: a factual inspection report prepared by an Inspector; a number of photographs taken at the construction site where the accident occurred, such photographs being taken by an Inspector; a GEC site specific safety management plan - policy and procedure manual relating to the Castle Hill TAFE site; a prohibition notice directed to GEC requiring GEC to immediately cease using the scaffolding at the site until it was inspected and rectified by a competent person or, alternatively, that the scaffolding be removed from the site; and, a prior convictions report indicating that the defendant had no prior convictions. During the cross-examination of the defendant, his taxation returns for 2008, 2009 and 2011 were tendered. The Agreed Statement of Facts appears as an annexure to this judgment.

7 Importantly, the agreed facts included the following matters:

(a)Mr Sangari had overall responsibility for running GEC;

(b)Mr Sangari was the GEC representative on the site;

(c)prior to the accident, Mr Sangari had begun removing sections and was dismantling the scaffolding so that the next stage of the work would begin;

(d)Mr Sangari did not place any signs or danger tags on the scaffolding to warn that it was incomplete and did not inform Mr Sidaoui or Mr Yassine that he had removed sections of the scaffolding so that it was no longer fit to be used by them.

8 Mr Sidaoui gave evidence in his case and in doing so provided credit card and bank records, certificates of training, a copy of a General OHS Induction for Construction Manual, a telephone account, a safe work method statement ("SWMS") and a number of references. During the course of his evidence Mr Sidaoui also provided a sketch of the workplace indicating the location of the scaffolding, identifying the work being performed and the placement of work tools as well as the position from which Mr Yassine fell.

9 In his oral evidence Mr Sidaoui stated that he lived with his wife and three children in public housing paying rent. His children were aged between16 years and 21 years. His wife did not work, two of his children were students without work and the eldest was at University with limited earning capacity. His wife and a daughter were receiving Centrelink benefits. In relation to his work, Mr Sidaoui said that he did not work every day and only worked when work was available. There were ebbs and flows in the availability of the work he performed. He provided the Court with a number of bank and credit card documents and observed that he used the credit card for business and private purposes. He had arrived in Australia from Lebanon in 1990 where he had been engaged in the Air Force as an Air Traffic Controller and as helicopter pilot. He had not completed University and left Lebanon because of the civil war. He was qualified under local conditions (ie by supervised work, not by a formal course of study) as a carpenter. He had participated in and completed some courses in New South Wales dealing with carpentry and joinery.

10 Since arriving from Lebanon Mr Sidaoui had also undertaken English courses: he spoke French and Greek. He was able to read books and newspapers in English. In 2009 and 2010 he had completed safety courses with green and white card qualifications. He had course notes from 2009 dealing with working at heights but that was the only information he had received on the subject. The course co-ordinator also recommended other books to him relating to working at heights.

11 Mr Yassine had commenced working as an apprentice with Mr Sidaoui in 1999 while pursuing an apprenticeship through TAFE. Mr Sidaoui had spoken to Mr Yassine about safety, using safety equipment and about working at heights. Mr Yassine was told he was always to wear a harness on a roof and the need to look at any scaffolding to be used while working at heights. Over a period of ten years Mr Sidaoui and Mr Yassine worked regularly on scaffolding. There was one occasion where Mr Yasssine found a plank missing from the scaffolding - Mr Sidaoui telephoned the builder concerning this irregularity and they both stopped working until the fault was rectified.

12 Mr Sidaoui stated that he understood his obligation as an employer was to be very careful that all risks be eliminated and he always talked to his workers about safety. For over ten years, he had spent two to three days per week working on scaffolding on building sites. Prior to this incident, he did not have a problem with working on scaffolding (apart from the single incident mentioned above where work had been stopped because a plank was missing). It was his practice to check scaffolding each day before work commenced and he had adopted that approach at the TAFE site. In ten years working with Mr Yassine, Mr Sidaoui was content to allow him to take over the team and supervise them when Mr Sidaoui was absent overseas.

13 On the day of the accident Mr Sidaoui and Mr Yassine attended the site but no other workers were present. They were working on a two-storey building and were required to cut the eaves back to the borderline for the purposes of undertaking guttering work. This work was carried out on the second storey of a TAFE building and was work performed on the top level of scaffolding erected approximately four metres above ground level. Mr Sidaoui had spoken to Mr Sangari, the director of GEC, about performing this work and had been engaged by GEC to carry out this work. Mr Sidaoui informed Mr Sangari that it was necessary to install scaffolding to allow the work to be performed and because Mr Sidaoui was unqualified to erect scaffolding it would have to be supplied and erected by a qualified scaffolder. As requested by Mr Sangari, Mr Sidaoui obtained a quote for this scaffolding work but Mr Sangari said the quote was too expensive. Because he was a licensed scaffolder, Mr Sangari said he could do it cheaper. As Mr Sangari was the principal contractor, Mr Sidaoui relied upon him to erect the scaffolding.

14 The day of the accident was the fifth day that Mr Sidaoui and Mr Yassine had worked on the job: the work was nearing completion on that day. Every day Mr Sidaoui had checked that guardrails were in place. There were no other workers at the site and no one else using the scaffolding. From time-to-time Mr Sidaoui saw Mr Sangari at the site and he was the only other person on the site. On the day of the accident there were three sections of gutter to be installed and by the time they had finished their coffee break at 9.30 am, two sections had been completed. Mr Sidaoui, after a discussion with Mr Sangari, left the site to purchase particular down piping from a supplier. Mr Yassine was on the scaffolding while Mr Sidaoui was absent from the site: he was unaware of the nature of the work Mr Yassine was performing at that time.

15 After returning to the site and after the coffee break, work resumed. Mr Sidaoui did not notice that the scaffolding had changed or had been partially dismantled. Mr Yassine had said nothing about the scaffolding or that Mr Sangari had touched it during his absence. Equipment and tools were taken up on to the scaffolding and there was a discussion with Mr Yassine about measurements to be taken and the size of the overhang for the guttering. Mr Sidaoui turned to pick up his tools and the silicone he was about to use and when he turned around, Mr Yassine was not there. He looked around and saw that Mr Yassine was on the ground and appeared to be asleep. Mr Sidaoui then called an ambulance and also Mr Sangari. He did not understand why Mr Yassine had gone to that end of the scaffolding and Mr Yassine did not say why he had done so.

16 Mr Sidaoui knew and understood that his duty as an employer was to work safely and to eliminate all risks. GEC and Mr Sangari had not given him any safety documents and neither he nor Mr Yassine had been provided with a safety induction or SWMS by GEC. Mr Sidaoui spoke about how, in light of this accident, he would perform the work and make it safe for everyone: he would conduct a risk assessment, talk to the workers about safety, produce a step-by-step work plan and he would check the site before work commenced. He now operated in that way and provided examples of SWMS and toolbox talks he now conducted. He now had an occupational health and safety information manual and used an induction to inform his employees. He wanted his workers to be safe and not hurt while at work. He understood that extra care had to be taken with apprentices and that they were not to work alone.

17 Mr Yassine had commenced work with Mr Sidaoui in 1999 and had been treated like his son. They had been on holidays together on a number of occasions. Indeed, the first such occasion was the first holiday that Mr Yassine had enjoyed. Mr Sidaoui had paid for boating lessons and had taken him out on the boat every week or two. After the accident, Mr Sidaoui did not work for six or seven weeks but visited Mr Yassine in hospital and at the rehabilitation centre at least every second day for a year. When Mr Yassine was allowed home, he asked Mr Sidaoui to build a laundry at his parents' home and Mr Sidaoui performed this work at his own cost, including the supply and fixing of the material. Mr Sidaoui did not see Mr Yassine anymore because Mr Yassine's parents had become aggressive and told him not to visit. Mr Sidaoui said he felt sorry for Mr Yassine who was permanently disabled and unable to work.

18 Mr Sidaoui's business was always conducted as a sub-contractor to others. He said that he had never received occupational health and safety documents, inductions or SWMS from principal contractors. He stated that, if he had been aware that railings had been removed from the scaffolding on the day of Mr Yassine's accident, he would have stopped the work and not allowed Mr Yassine to climb up on to the scaffolding.

19 In the taxation year ending 2008, Mr Sidaoui said he had a net income of $28,000 while for the taxation year ending in 2009 he had a net income of $20,000. At the time of giving evidence he estimated his net income to be $30,000 for the year.

20 During cross-examination, Mr Sidaoui was able to produce copies of his 2008, 2009 and 2011 taxation returns. The 2008 taxation return showed a gross income of $229,000, the 2009 taxation return showed a gross income of $111,000 and the 2011 return showed a gross income of $79,000 with an estimate that $58,000 was taken up by expenses. He did not own a house or have other investments or assets but did own a van. He did not have any superannuation investment accounts. He described his current business as being "up and down." When working with Mr Yassine at the TAFE site, he was paid $500 per day: $224 of that amount was paid to Mr Yassine for each work day.

DELIBERATION

21 In determining the objective seriousness of this offence it is necessary to have regard to the surrounding circumstances. It appears that the work being performed by Mr Sidaoui and Mr Yassine was coming to an end and in fact it was due to be completed on the day of the accident. Unknown to Mr Sidaoui, Mr Sengari had started dismantling and removing parts of the scaffolding and had removed one of the top rails, a return rail, the mid-rails and toe boards as well as bracing for the scaffolding. The effect of those actions by Mr Sangari was to render the scaffolding unsafe and as submitted by the prosecutor, leaving it "no longer fit for purpose as a secure work platform."

22 Mr Sangari had not placed any danger tags or other signs on the partly dismantled scaffolding indicating that it was no longer to be used and that it was in the process of being dismantled. Mr Sangari had not completed this dismantling task when he left the site. Neither Mr Sidaoui nor Mr Yassine were informed by Mr Sangari that the scaffolding was in this condition and that it was no longer safe to use. While these acts and omissions of Mr Sangari are of real significance, nevertheless, there were serious omissions in the method of work adopted by the defendant, Mr Sidaoui. Mr Yassine, when commencing work at this site: was not given any instructions or written information about his responsibilities in relation to the safety at the site; was not given any written information about the work he was to carry out at the site; was not given any written information in relation to working at heights; and, was not given any instructions at the site on safely working at heights from scaffolding.

23 The Court accepts the prosecutor's submission that the risk of falling from this scaffolding was reasonably foreseeable, a conclusion supported by Mr Sidaoui's previously stated acts and omissions. Mr Sidaoui had not ensured that a risk assessment or adequate risk assessment was conducted and that means were identified to control the risk of falling. Mr Sidaoui did not conduct an inspection to ensure that the scaffolding was safe to use, especially when work resumed on the day of the accident. There were simple and straightforward remedial steps that could have been taken by the defendant to avoid the risk present at this site and they are acknowledged in the Agreed Statement of Facts. Nevertheless, this accident took place in unusual circumstances: indeed, Mr Sidaoui resumed work on this unsafe scaffolding and was as much at risk as Mr Yassine. The dismantling of the scaffolding by Mr Sangari, during the performance of work, was not expected.

24 Counsel for the defendant accepted that the aggravating factors in this offence were: the injury, loss and harm suffered by Mr Yassine; the fact that no proper regard was paid to issues of safety; and, that there was a grave risk to safety and a possible risk of death. While the occurrence of an accident is not necessarily indicative of the seriousness of an offence, the extent of Mr Yassine's injuries is evidence of the seriousness of the risk present at the site. His extensive paralysis has ended his ability to lead a normal life and his ability to work: sadly, the risk was such that he might well have died from injuries received when he fell from the height at which he was working on this site. In all of the circumstances, this breach is to be considered a serious breach of the Act.

25 Both general and specific deterrence should be reflected in the penalty imposed. While it can be accepted that Mr Sidaoui has taken steps since this accident to address the risks associated with this type of work, including, as it does, the risk of working at height, the evidence suggests that the safety methods now adopted by the defendant for this work are basic but nevertheless effective having regard to the nature of the work. Specific deterrence will, therefore, play a much reduced role in setting an appropriate penalty.

26 In relation to subjective factors, the first matter to consider is the timing of the defendant's guilty plea. During the course of case management, as earlier observed, the co-defendants involved in this incident entered pleas of guilty last year. Mr Sidaoui, as he was entitled to, pleaded not guilty and maintained that stance until one day before the estimated three-day hearing commenced. The Court accepts his counsel's submission that Mr Sidaoui strongly believed that Mr Sangari and GEC were responsible for the accident by not drawing attention to the state of the scaffolding: it was only when the legal position was explained to Mr Sidaoui that he realised his responsibility and entered a plea of guilty. The prior notification to the prosecutor allowed steps to be taken to cancel arrangements for witnesses to attend and indeed, made it unnecessary to put Mr Yassine to the inconvenience and distress of being called as a witness in the proceedings.

27 The prosecutor submitted that the defendant's plea, although not able to be classified as an early plea, did carry with it "some utilitarian value" which may be reflected by the Court granting a discount. Counsel for the prosecutor accepted that, in this case, an order for costs would address much of the inconvenience associated with the lateness of the plea but also pointed out that, by being able to co-operatively act to allow the sentencing to be conducted on what was to be the third day of the contested trial, the waste of resources had been minimised. There is no doubt that the amount of discount available is maximised when a plea is entered at the earliest possible opportunity. There may be circumstances when that time does not occur at the first mention of the matter but the importance of an early plea should not be diluted by treating all pleas as being of near equal value. Having regard to the submissions made by the prosecutor, the Court is satisfied that this is an appropriate case in which to grant a discount of 5 per cent.

28 There are other subjective factors to be considered. The defendant is a first offender who has not come to notice although operating for some 20 years in an industry that it is notorious for risks to safety. Mr Sidaoui is therefore entitled to the leniency usually extended to first offenders. It was also accepted that the defendant co-operated with the prosecutor's investigation and the Court has previously observed that is an important factor to take into account. In addition, the evidence supports a conclusion that the defendant has exhibited remorse and contrition and in particular, that is demonstrated by the effective closure of his business for an extended period while he attended Mr Yassine in hospital and the continuing frequency of contact during Mr Yassine's hospitalisation and rehabilitation. The Court accepts that the defendant has taken responsibility for his actions and has been personally affected by the horrific injuries suffered by Mr Yassine.

29 Mr Sidaoui also provided a number of character references from business people and community leaders all speaking highly of his honesty, courtesy and community involvement. Those who had business connections with him spoke of Mr SidaouI as being conscientious and making sure that work was performed safely. He appears to have established a reputation for looking after his employees both in relation to work and in their non-work activities.

30 It was submitted by counsel for the defendant that the relative culpability of the defendant was low compared with that of GEC and Mr Sangari. Mr Sangari had taken it upon himself to erect the scaffolding because he was a certified scaffolder and had commenced dismantling the scaffolding without notifying Mr Sidaoui or Mr Yassine that he was taking those steps. Mr Sangari did not make any enquiries of Mr Sidaoui or Mr Yassine as to whether or not they had ceased work or had completed their task and had not taken any steps to tag or rope off the area as an indication that it should not be used because it was unsafe as it was in the course of being dismantled. It was submitted that GEC and Mr Sangari bore 80 per cent of the responsibility for this breach.

31 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 checked 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.

32 It is convenient to note at this point that Mr Sidaoui took the opportunity to be legally represented at the sentencing hearing for Mr Sangari. GEC was in the hands of a liquidator when the Court commenced that sentencing hearing and leave was granted to the prosecutor to discontinue the proceedings against that company.

33 In his case Mr Sangari accepted that he did not inform the two workers that the scaffolding was being dismantled and did not danger tag it or place notices upon it warning of the danger of using the scaffolding. Mr Sangari gave evidence that he had been told by Mr Sidaoui that Mr Yassine was suffering eye problems on the day and could not see: Mr Sidaoui denied any such conversation. The Court accepts Mr Sidaoui's evidence on that matter. The evidence of Mr Sangari and Mr Sidaoui in these proceedings, by consent, was treated also as evidence in Mr Sidaoui's case.

34 In relation to the defendant's capacity to pay a fine, on his behalf it was submitted that he was a man operating a small sub-contracting business and with almost no assets. His income appeared to be modest and he lived in public housing with one fully dependent child and two partially dependent children. Unfortunately, the evidence presented by the defendant does not give a totally clear picture of his business operations, nor has there been an adequate explanation of how he has modest sums from relatively high (at times) gross takings.

35 Mr Sidaoui's evidence as to rates of earnings was limited to what he had been paid at the TAFE site: on this job he was paid $500 per day of which $224 was paid to Mr Yassine. That rate, applied over five days per week, would return $1,380 gross to Mr Sidaoui. His evidence was, however, that he did not always work everyday. In cross-examination, Mr Sidaoui accepted that his net earnings in 2008 were approximately $28,000 but his tax return showed a gross income of $229,000. He did not know whether that was before expenses. In 2009 he estimated his net earnings to be $20,000 but his gross income was $111,000 with supplies costing approximately $60,000 which would have left him with an income of $51,000. In 2011 his estimate of his net earnings was approximately $30,000 but his gross income was in the region of $79,000 with expenses of $58,000 which should have left him with a net income of about $21,000, not the $30,000 that he estimated. Mr Sidaoui said that he did not have any superannuation but had earlier spoken of the money he earned at the TAFE site having to cover a number of matters, including insurance and superannuation.

36 Section 6 of the Fines Act 1996 requires the Court to taken into account such information as is reasonably available as to the financial circumstances of the defendant: it is distinctly possible that the inadequacy of the financial material is a reflection on the nature of the defendant's business, being a one-person operation and not conducted through an incorporated entity. The Court will therefore proceed on the basis that the defendant has means, but modest means, to pay a fine. This is an appropriate case for the defendant to apply to the Registrar for approval to pay by suitable instalments, if so advised.

37 At the request of the Court, solicitors for the prosecutor supplied an estimate of costs for this matter: that document indicated disbursements in the sum of $450, counsel's fees of over $17,500 and professional costs (calculated on a party/party basis) of $6,700, coming to a total of over $24,600. Having regard to the fine to be imposed and the evidence as to the financial means of the defendant, in this case the prosecutor's costs should be limited to $8,500.

38 The final matter concerns the victim's impact statement prepared by Mr Yassine. That document was handed up during the course of the sentencing hearing and in accordance with the Court's usual practice, was marked for identification. Having reached the conclusion that a conviction should be entered, the Court proposes to take into account the content of Mr Yassine's statement. That statement sets out in some detail Mr Yassine's frustration and despair at the effect of this devastating injury and how, as a young man, he has lost the ability to fully live his life. The Court acknowledges the importance of such statements in understanding the full impact that workplace injuries have on injured individuals and their families.

ORDERS

39 Having regard to the matters referred to above, the Court makes the following orders:

(i)The defendant, Walid Mohamad Sidaoui, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 322 of 2011, to which he entered a plea of guilty;

(ii)the defendant is fined the sum of $10,000 with half that sum to be paid to the prosecutor by way of moiety;

(iii)the defendant is to pay the costs of the prosecutor in the sum of $8,500.

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.Mr WALID MOHAMAD SIDAOUI, ("defendant") is an employer.

Background

3.At all material times the defendant was an employer involved in a carpentry and joinery business, trading as Wallywood Carpentry and Joinery.

4.At all material times Mr Yassine was employed by the defendant.

5.At all material times Ghazi Sangari ("Mr Sangari") was the sole director of GEC Consulting Group Pty Ltd, a business involved in the design and project management of residential and commercial developments ("GEC").

6.Mr Sangari had overall responsibility for the running of GEC.

7. In 2009 GEC was engaged by TAFE NSW to undertake construction work at the TAFE Western Sydney Institute, Castle Hill College, cnr Showground Road and Victoria Road, Castle Hill ("site").

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

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

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

11.At a point in time prior to 30 April 2009 GEC subcontracted the defendant to undertake some construction work at the site, including "[c]utting back the fascia to the building line."

The Incident

12.On 30 April 2009 the defendant and Mr Yassine were undertaking guttering work at the site. This involved them working on a scaffold approximately 4 metres above ground level ("Scaffold").

13.Prior to the Incident occurring Mr Sangari had begun the process of removing and dismantling the Scaffold.

14.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.

15. Mr Sangari had begun dismantling and removing the Scaffold so that the next scheduled building works could commence.

16.The effect of Mr Sangari partially dismantling the Scaffold was that it was no longer fit for purpose as a secure work 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.

17.Mr Sangari did not place any signs or danger tags on the Scaffold to warn others that it was incomplete.

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

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

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

21.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

22.As is referred to at paragraphs 13 - 16 above, prior to the Incident the scaffold had been rendered structurally unstable and unfit for use by Mr Sangari's removal of one of the Scaffold's top rails and its return rail, midrails and toe boards and bracing.

23.The defendant did not ensure that, prior to any work being undertaken, all top rails, end rails and bracing were in situ on the Scaffold that was used to perform the work, so as to ensure Mr Yassine's health, safety and welfare at work.

Failure to ensure provision of adequate information, instruction and training

24.Prior to the Incident the defendant did not ensure Mr Yassine was provided with any or any adequate information, instruction and training to ensure that he did not perform work at height unless:

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

25.Prior to the Incident, Mr Yassine was not given any:

a.Instructions about his responsibilities the relation to safety at the Site.

b.Written information about his responsibilities in relation to safety at the Site.

c.Written information for the work he was carrying out at the time of the Incident.

d.Written information in relation to working at heights.

e.Instructions on safely working from the scaffolds at the Site.

f.Training in safely working from scaffolds.

26.At the time of the Incident the defendant did not have any written occupational health and safety procedures.

Failure to ensure provision of adequate induction

27.When Mr Yassine started working at the site he:

a.was not given any instructions about his responsibilities in relation to safety at the site.

b.was not given any written information about his responsibilities in relation to safety at the site.

c.was not given any written information about the work he was to carry out at the site.

d.was not given any written information in relation to working at heights.

e.was not given any instructions on safely working from scaffolds at the site.

28.The defendant did not ensure that Mr Yassine was provided with any or adequate induction to the site in which the defendant, or someone on his behalf, explained to Mr Yassine that he was not permitted to be working at height unless a stable and secure scaffold, with all rails and bracing, was in situ that was capable of preventing the risk, so as to ensure Mr Yassine's health, safety and welfare at work.

29.GEC did not have induction records for Mr Yassine.

30.Neither Mr Yassine nor the defendant were inducted onto the Site.

31.At the time of the Incident the defendant did not have a "written induction regime."

Safe Work Method Statements

32.Prior to the incident the defendant did not prepare or provide Mr Yassine with a written safe work method statement for work at the site.

Failure to ensure adequate risk assessment

33.The defendant did not prepare or conduct a risk assessment or an adequate risk assessment at the site to identify the risk of persons falling from height to the ground and the means by which it could be controlled such as:

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

34.To the extent that a risk assessment was undertaken by the defendant for the task of working at heights it amount to the matter being "discussed with builder".

Decision last updated: 03 May 2012