Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Michael Kent v All Spa Deliveries Pty Ltd [2012] NSWIRComm 59
• Hearing dates: 24 May; 20 June 2012
• Decision date: 20 June 2012
• Before: Kavanagh J

Decision

In matter No IRC1615 of 2011, I find the corporate defendant guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000. The maximum penalty for such a breach is $550,000 under the Act.

The corporate defendant is fined in the sum of $15,000 with a moiety to the WorkCover Authority.

In matter No IRC 1614 of 2011, I find the corporate defendant guilty of the failure to notify an incident under s 86(1)(b) of the Occupational Health and Safety Act 2000. The maximum penalty for such a breach is $55,000.

The corporate defendant is fined in the sum of $2,000 with a moity to the WorkCover Authority.

I have considered the question of totality but an overview of the facts do not persuade that the failure to notify is other than a separate and distinct charge with no similar elements to the s 8(2) charge. There shall be no totality principle applied to penalty.

In matter No IRC1613 of 2011, the charge is against the individual defendant as the Director of the corporation brought in accordance with the deeming provisions of s 26(1) of the Act under s 8(2), I find the defendant guilty. The maximum penalty for the charge is $55,000.

The individual defendant is fined in the sum of $2,000.

The defendant shall pay the Prosecutor's costs as agreed or assessed.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach by corporate defendant of ss 8(2) and 86(1)(b) - breach by individual defendant of s 8(2) by virtue of deeming provision in s 26 - amended applications for order - guilty pleas - corporate defendant operated spa bath delivery business - contractor injured in delivery of spa bath - failed to provide safe system of work for person not employee - no mechanical aid to lift spa - no proper risk assessment undertaken - each delivery site would have particular risks - foreseeability - specific and general deterrence relevant - gravity of risk - serious breach - corporate defendant obliged to ensure notification of incident - unintended oversight - early pleas - corporate defendant and individual defendant of limited financial means - discount on penalty - individual and corporate defendants good corporate citizens - principle of totality not applicable - penalty to reflect objective seriousness of offence - penalty - moiety to prosecutor - costs
• Legislation Cited: Occupational Health and Safety Act 2000; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99; Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (1999-2000) 99 IR 29; Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384; Inspector Janet Corbett v BBC Hardware Pty Limited and Bunnings Pty Limited (2006) NSWIRComm 401; Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464; Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357; Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364; Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465; R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104; Tyler v Sydney Electricity (1993) 47 IR 1; Winchester v Regina (1992) 58 A Crim R 345
• Category: Principal judgment
• Parties: Inspector Michael Kent (Prosecutor); All Spa Deliveries Pty Ltd (Corporate Defendant); Jihad Gerges (Individual Defendant)
• Representation: L Doust (Prosecutor); WorkCover Authority of New South Wales (Prosecutor); Coyne Legal (Defendants)
• File Number(s): IRC 1613 of 2011; IRC 1614 of 2011; IRC 1615 of 2011

Judgment

1 Two prosecutions are brought by Inspector Michael Kent of the WorkCover Authority of New South Wales against All Spa Deliveries Pty Ltd ("the corporate defendant") by way of Amended Applications for Order. The first charge is brought under s 8(2) of the Occupational Health and Safety Act 2000 ("the Act") and the second against the corporate defendant under s 86(1)(b) of the Act.

2 A third prosecution is brought against the Director of the Corporation, Mr Jihad Gerges ("the individual defendant") under s 8(2) of the Act in accordance with the deeming provisions of s 26 of the Act.

3 In matter No IRC1615 of 2011, it is alleged the corporate defendant on 19 October 2009 at Cheltenham contravened s 8(2) of the Act in that it failed to:

ensure by its acts and omissions as particularised below, that people other than its employees, and in particular Noha Ammana, were not exposed to risks to their health or safety arising from the conduct of its undertaking while those people were at the employer's place of work, contrary to section 8(2) of the Occupational Health and Safety Act 2000.

The particulars of the charge are:

Particulars of Risk

a)The risk of a spa bath falling or slipping and striking or crushing a person other than an employee whilst it was being lifted or otherwise manoeuvred from the back of the utility vehicle at the delivery location.

Particulars of the acts or omissions in failing to eliminate the risk:

a)The defendant failed to ensure that the system of work utilised for lifting spa baths, in particular a Grand Bahama Spa weighing approximately 362kg ('the spa bath'), was safe and without risks to health in that the defendant did not:

i)Provide a mechanical aid, such as a hiab crane or a forklift, to lift the spa from the back of the utility vehicle and manoeuvre the spa bath into position;

ii)Support the spa bath by means other than by a single person, such as ropes or other supporting straps;

iii)Ensure that sufficient additional personnel were available to engage in a team lifting procedure to lift the spa bath from the back of the utility vehicle and manoeuvre it into position;

iv)Ensure that the weight of the spa bath was known to persons other than its employees who were involved in the task of lifting the spa bath; and/or

v)Request and utilise assistance from other persons available at the site to hold the spa bath after it had been lifted from the back of the utility truck.

b)The defendant failed to undertake any, or any adequate, risk assessment in that the defendant did not, or did not adequately take into consideration:

i)The actions and movements required to lift the spa bath from the utility vehicle and manoeuvre it into position;

ii)The location of the spa bath and the distance it was required to be moved;

iii)The weight of the spa bath and the force that it was likely to exert;

a)The work environment at the premises;

b)Mr Ammana's skills and experience in lifting spa baths.

c)The defendant failed to provide adequate information and instruction to persons other than its employees in that it did not advise such persons of the actual weight of the spa bath.

d)The defendant failed to provide any, or any adequate, supervision to persons other than its employees in that it did not have a person present to:

i)Direct such persons not to undertake the lifting of the spa bath without a mechanical aid, such as a hiab crane or a forklift, to lift the spa bath from the back of the utility vehicle and manoeuvre the spa bath into position;

ii)Direct such persons to support the spa bath by means other than by a single person, such ropes or other supporting straps;

iii)Ensure that sufficient additional personnel were available to engage in a team lifting procedure to lift the spa bath from the back of the utility vehicle and manoeuvre it into position; and/or

iv)Ensure that the weight of the spa bath was known to persons other than its employees who were involved in lifting the spa bath.

4 As a result of the individual defendant's failures and omissions Mr Ammana was exposed to the risk. Mr Ammana's injuries were a manifestation of the risk.

5 In matter No IRC1614 of 2011, it is alleged the corporate defendant on 19 October 2009 contravened s 86(1)(b) of the Act in that it failed to:

Notify an incident which occurred at the premises contrary to section 86(1)(b) of the Occupational Health and Safety Act 2000.

The particulars of the charge are:

1.On 19 October 2009 the defendant was in charge of an operation being conducted on the premises ('the operation').

2.The operation was the delivery of a spa bath ('the delivery').

3.Mr Noha Ammana was injured in the course of the delivery when the spa bath, weighing approximately 362kg, fell on him ('the incident').

4.The incident was one which was required to be notified to WorkCover in accordance with clause 341 of the Occupational Health and Safety Regulation 2001, in that:

a. It caused an injury (supported by a medical certificate) to be suffered by Noha Ammana, that resulted in him being unfit for a continuous period of at least 7 days to attend his usual place of work, to perform his usual duties at his place of work, or to carry out his usual activities, within the meaning of clause 341(a);

b. Alternatively, it was an incident that involved a risk of serious injury to a person, within the meaning of clause 341(j).

5. The time in which the notification was required to be made was as soon as practicable (but not later than 7 days) after the defendant became aware of the incident.

6. The defendant did not notify the incident to WorkCover within 7 days of the incident occurring or at all.

6 In matter No IRC1613 of 2011, it is alleged the individual defendant on 19 October 2009 at Cheltenham contravened s 8(2) of the Act in that it failed to:

ensure by its acts and omissions as particularised below, that people other than its employees, and in particular Noha Ammana, were not exposed to risks to their health or safety arising from the conduct of its undertaking while those people were at the employer's place of work, contrary to section 8(2) of the Occupational Health and Safety Act 2000.

The particulars of the charge are:

a)At all material times the defendant was a director of the corporation.

b)At all material times the corporation was an employer.

c)On 19 October 2009 at 46 Boronia Avenue, Cheltenham in the State of New South Wales, All Spa Deliveries contravened section 8(2) of the Occupational Health and Safety Act 2000.

Particulars of Risk

d)The risk of a spa bath falling or slipping and striking or crushing a person other than an employee whilst it was being lifted or otherwise manoeuvred from the back of the utility vehicle at the delivery location.

Particulars of the acts or omissions in failing to eliminate the risk

e)The corporation failed to ensure that the system of work utilised for lifting spa baths, in particular a Grand Bahama Spa weighing approximately 362kg ('the spa bath'), was safe and without risks to health in that the defendant did not:

i)Provide a mechanical aid, such as a hiab crane or a forklift, to lift the spa from the back of the utility vehicle and manoeuvre the spa bath into position;

ii)Support the spa bath by means other than by a single person, such as ropes or other supporting straps;

iii)Ensure that sufficient additional personnel were available to engage in a team lifting procedure to lift the spa bath from the back of the utility vehicle and manoeuvre it into position;

iv)Ensure that the weight of the spa bath was known to persons other than its employees who were involved in the task of lifting the spa bath; and/or

v)Request and utilise assistance from other persons available at the site to hold the spa bath after it had been lifted from the back of the utility truck.

f)The corporation failed to undertake any, or any adequate, risk assessment in that the defendant did not, or did not adequately take into consideration:

i)The actions and movements required to lift the spa bath from the utility vehicle and manoeuvre it into position;

ii)The location of the spa bath and the distance it was required to be moved;

iii)The weight of the spa bath and the force that it was likely to exert;

iv)The work environment at the premises;

v)Mr Ammana's skills and experience in lifting spa baths.

g)The corporation failed to provide adequate information and instruction to persons other than its employees in that it did not advise such persons of the actual weight of the spa bath.

h)The corporation failed to provide any, or any adequate, supervision to persons other than its employees in that it did not have a person present to:

i)Direct such persons not to undertake the lifting of the spa bath without a mechanical aid, such as a hiab crane or a forklift, to lift the spa bath from the back of the utility vehicle and manoeuvre the spa bath into position;

ii)Direct such persons to support the spa bath by means other than by a single person, such ropes or other supporting straps;

iii)Ensure that sufficient additional personnel were available to engage in a team lifting procedure to lift the spa bath from the back of the utility vehicle and manoeuvre it into position; and/or

iv)Ensure that the weight of the spa bath was known to persons other than its employees who were involved in lifting the spa bath.

7 As a result of the corporation's failures and omissions, Mr Ammana was exposed to the risk. Mr Ammana's injuries were a manifestation of the risk.

8 There was an Agreed Statement of Facts which relevantly reads:

4.At all material times the defendant was a corporation.

5. At all material times the defendant was an employer involved in a business which undertakes the delivery of spa baths.

6.At all material times Mr Noha Ammana also known as Mohammad Alaoui ("Mr Ammana") was employed by the defendant.

7.In the alternative, if Mr Ammana is not, at law, an employee of the defendant, Mr Ammana was a person other than an employee within the meaning of subsection 8(2) of the Act.

8.At all material times Jihad Gerges ("Mr Gerges") was the sole director of the defendant.

9.On 13 September 2009 Debby and Darko Kuzmanovic, of 46 Boronia Avenue, Cheltenham in the State of New South Wales purchased a Grand Bahama Spa with Stereo Floor Model ("the Grand Bahama spa") from Spa Store Pty Ltd ACN 135 274 967 ("Spa Store"), trading as Spa World Seven Hills ("the Seven Hills store"). The sales person was identified on the tax invoice provided to the homeowners as "Dorothy".

10.Spa Store has no employees of its own. It contracts Uconnect (Australia) Pty Ltd ACN 101 978 812 ("Uconnect") to run and provide staff for the Seven Hills store.

11. Dorothy Ball was a contractor to both UConnect and Spa Store who worked at the Seven Hills store. Dorothy Ball went by the nickname 'Dot'.

12. On 8 October 2009 a delivery request signed by 'Dot' was sent to the defendant. That request advised that delivery of the Grand Bahama spa to Debby and Darko Kuzmanoic at 46 Boronia Avenue, Cheltenham in the State of New South Wales had been requested for Thursday, 15 October 2009 and requested the defendant to contact the customer to confirm.

13.In an interview with WorkCover Ms Debby Kuzmanovic stated that approximately two weeks prior to 19 October 2009 an inspection of the Cheltenham property had been undertaken. Ms Kuzmanovic stated that she did not know the name of the person who had undertaken the inspection, however she stated that it "...might have been the owner of the spa delivery company".

14. On 18 October 2009 a further delivery request was sent requesting the defendant to contact the customer "today and book in for next week".

Employment of Mr Ammana by the defendant

15. A few days prior to 17 October 2009 Mr Ammana was advised by a friend that Mr Gerges was looking for someone to do some work. Mr Ammana approached Mr Gerges at Spa World Campbelltown ("the Campbelltown store") and asked whether he needed some help. Mr Gerges said that he did and asked Mr Ammana to come into the Campbelltown store to see if he could lift. Mr Ammana went into the store with Mr Gerges and lifted a corner of one of the spa baths about 20cm off the floor. Mr Gerges said words to the effect of "that's good enough" and told Mr Ammana that he could start "...in three days' time". Mr Ammana and Mr Gerges exchanged telephone numbers.

16.From 17 October 2009 Mr Ammana was employed by the defendant as a "delivery offsider." In an interview with WorkCover Mr Ammana stated that Mr Gerges offered him work and advised him that he would be paid in cash at the end of each day "until he put me on the books". Mr Ammana further stated that he would be paid $50 per spa delivered and there would be a minimum of three spas to be delivered per day. Mr Ammana had no previous experience in delivering spa baths.

17.On 17 October 2009 Mr Gerges picked up Mr Ammana in Mr Gerges' utility vehicle from Mr Ammana's home at approximately 8.30am. Mr Gerges and Mr Ammana drove to the Campbelltown store and picked up a spa bath, being a 6-seater Jacuzzi ("the Jacuzzi"), for delivery to a home in the Blue Mountains ("the Blue Mountains premises"). In an interview with WorkCover Mr Ammana estimated that the Jacuzzi was approximately 2.5 metres in width by 2.5 metres in length. He further estimated the depth of the Jacuzzi to be 1.2 metres.

18.The Jacuzzi was loaded onto the flat tray of the utility vehicle by a forklift. Mr Gerges then drove the utility vehicle with Mr Ammana in the passenger seat to the Blue Mountains. When they reached the Blue Mountains premises, Mr Gerges and Mr Ammana unloaded the Jacuzzi by hand. Mr Gerges directed Mr Ammana to stand at the other side of the Jacuzzi from him and together they slid the Jacuzzi across the flat tray of the utility vehicle until the Jacuzzi tipped over and dropped onto a flat trolley. In an interview with WorkCover Mr Ammana described the flat trolley as looking as if it had been "custom made", with its top being approximately 30-40cm above the floor ("the trolley").

19. Mr Gerges and Mr Ammana then stood the Jacuzzi up so that it was on its side on the trolley. They then wheeled it through a side gate and into the backyard, with the assistance of two other men who were present at the Blue Mountains premises. The Jacuzzi was then flipped back onto its base by Mr Ammana and Mr Gerges.

20. Following the delivery to the Blue Mountains premises, Mr Gerges and Mr Ammana returned in the utility vehicle to the Campbelltown store. There they picked up another spa bath for delivery to Wollongong ("the Wollongong spa bath"). The Wollongong spa bath was described by Mr Ammana in his interview with WorkCover as the same size as the Jacuzzi delivered to the Blue Mountains premises.

21. The Wollongong spa bath was loaded onto the utility vehicle with a forklift. Mr Gerges then drove the utility vehicle with Mr Ammana in the passenger seat to Wollongong. They unloaded the spa from the utility vehicle at the premises in Wollongong in the same manner as the Jacuzzi in the Blue Mountains. In addition to Mr Ammana and Mr Gerges, the new owner of the Wollongong spa bath assisted with the unloading. When the Wollongong spa bath was unloaded, it was wheeled on the trolley through a side gate and again tipped off the trolley under an awning or pergola.

22 In his interview with WorkCover Mr Ammana stated he made two further deliveries on 17 October 2009 with Mr Gerges. He stated that following the delivery of the Wollongong spa bath, they returned to the Campbelltown store and picked up a massage chair for delivery to Merrylands. Mr Ammana further stated that he and Mr Gerges together lifted the massage chair both onto the utility vehicle at the Campbelltown store and off the utility vehicle at Merrylands. Mr Ammana was unaware of the weight of the massage chair but described it as measuring approximately 1 metre by 1 metre and as being "pretty heavy".

23At all times on 17 October 2009 Mr Gerges gave directions to Mr Ammana as to how the work was to be conducted. Mr Gerges drove the utility vehicle at all times on 17 October 2009 and returned Mr Ammana to his home at the end of the day.

24 At the end of the day on 17 October 2009 Mr Gerges paid Mr Ammana $150 in cash.

The Incident

25 On the morning of 19 October 2009 Mr Gerges and Mr Ammana drove together to the Seven Hills store.

26 At the Seven Hills store the Grand Bahama spa was placed flat on its base on the tray of the utility vehicle by a forklift. The Grand Bahama spa weighed approximately 355kg and was to be delivered to Mrs Kuzmanovic at the Cheltenham property.

27 The Cheltenham property had a steep concrete driveway that went beside and ended behind the house. The driveway's concrete was old and very rough. At the end of the driveway there was a newly constructed carport. Mrs Kuzmanovic asked Mr Gerges to put the Grand Bahama spa under the carport. At the time of the incident, the carport awning had wooden frames on its under side.

28 The old concrete driveway stopped approximately one metre before the concrete slab which comprised the floor of the new carport. The gap between the old driveway and the slab floor of the carport was filled with rubble and dirt and had metal rods, approximately 1 metre apart, protruding through the rubble ("the driveway gap").

29 Shortly after they arrived at the Cheltenham property Mr Gerges directed Mr Ammana to guide him while he reversed the utility vehicle down the driveway. Mr Gerges told Mr Ammana that he would back the utility vehicle right up to the carport and that they would then slide the Grand Bahama spa onto the floor of the carport without using the trolley. In an interview with WorkCover Mr Ammana stated that the driveway gap prevented the use of the trolley to deliver the Grand Bahama spa.

30Mr Ammana asked Mr Gerges how safe it would be for the tray of the ute with the Grand Bahama spa on it to overhang the protruding metal rods. Mr Gerges replied that it would be easier to do it the way he (Mr Gerges) had outlined.

31 Mrs Kuzmanovic asked Mr Gerges whether any lifting equipment was on the way to assist with placing the Grand Bahama spa into position. Mr Gerges replied that it was unnecessary, as spas were always lifted manually.

32 Two builders were present at the Cheltenham premises at the time of delivery. They offered their assistance, to which Mr Gerges responded that he would let them know if he needed help. Mr Gerges also declined an offer made by Mrs Kuzmanovic to provide timber for them to build a ramp.

33 Mr Gerges then proceeded to reverse the utility vehicle to the carport. When he had done so, he directed Mr Ammana to go to the passenger side. He then requested Mr Ammana to assist him with sliding the spa off the tray of the utility vehicle.

34 Mr Ammana and Mr Gerges stood on opposite sides of the utility vehicle. They slid the Grand Bahama spa across the tray of the utility vehicle towards the rear end of the tray until it tilted and dropped onto the ground. Mr Ammana and Mr Gerges then lifted it to an almost upright position on its side, causing the Grand Bahama spa to touch the timber roof frame of the carport.

35 Mr Gerges then pushed the Grand Bahama spa further towards an upright position, wedging it between the floor and the roof of the carport. At this time, the Grand Bahama spa was not quite vertical, but was sitting at a slight angle to the tray of the utility vehicle. The side of the Grand Bahama spa was on the ground and part of its base, being the part closest to the side on which Mr Ammana was standing, was leaning against the utility vehicle. The other part of the base, being closest to the side on which Mr Gerges was standing, was not leaning against the utility vehicle.

36 Mr Gerges directed Mr Ammana to come around to his side of the utility vehicle and hold the Grand Bahama spa while he moved the utility vehicle forward to make more room. The additional room was apparently intended to free the spa and permit it to be laid down onto its base.

37 At the direction of Mr Gerges, Mr Ammana stood inside the carport frame, between the Grand Bahama spa and the utility vehicle to hold it. Mr Ammana was positioned between the corner of the base side of the spa and the centre of the spa when Mr Gerges got back into the utility vehicle to move it.

38 Mr Gerges asked Mr Ammana if he thought that he was OK to hold the spa. Mr Ammana replied that was OK. Mr Ammana stated in an interview with WorkCover that he did not realise that the Grand Bahama spa would move as soon as the utility vehicle was moved.

39 As soon as Mr Gerges moved the utility vehicle the Grand Bahama spa moved. Mr Ammana took two steps backwards up the driveway away from the Grand Bahama spa, however he fell into the driveway gap. The Grand Bahama spa then fell onto Mr Ammana, striking him across the pelvis and crushing him ("Incident").

40 Mrs Kuzmanovic called the Ambulance Service to provide medical assistance for Mr Ammana.

41 As a result of the Incident Mr Ammana suffered three fractures to his pelvis, major trauma to soft tissue ligaments and tendons, nerve damage to his lower back and major trauma to the ligaments in his left leg.

42 As at 20 September 2011 Mr Ammana had been unable to return to work after the Incident.

43 The defendant did not provide or arrange for any mechanical device, such as a hiab crane or a forklift, to lift the Grand Bahama spa from the tray of the utility vehicle and place it into position.

44 The defendant provided no other means by which to support the Grand Bahama spa when it was removed from the utility vehicle, such as ropes or straps.

45 The defendant did not take steps to have additional persons available to engage in a team lifting procedure to manoeuvre the Grand Bahama spa from the tray of the utility vehicle and into position.

46 Clause 81 of the Occupational Health and Safety Regulation 2001 requires that an employer who is carrying out a risk assessment in relation to manual handlings must take into consideration, where relevant, the following factors:

(a)Actions and movements, including repetitive actions and movements;

(b)Workplace and workstation layout;

(c)Working posture and position;

(d)Duration and frequency of manual handling;

(e)Locations of loads and distances moved;

(f)Weights and forces;

(g)Characteristics of loads and equipment;

(h)Work organization;

(i)Work environment;

(j)Skills and experience;

(k)Age;

(l)Clothing;

(m)Special needs (temporary or permanent);

(n)Any other factors considered relevant by the employer, the employees or their representatives on health and safety issues.

47 The defendant did not conduct a risk assessment for the task of lifting the Grand Bahama spa from the tray of the utility vehicle and placing it into position next to the carport which took into consideration any of the relevant factors referred to in paragraph 47 above, including:

(i)The actions and movements required to lift the Grand Bahama spa from the tray of the utility vehicle and manouevre it into position under the carport;

(ii) The location of the Grand Bahama spa and the distance it was required to be moved;

(iii) The weight of the spa bath and the force it was likely to exert;

(iv) The work environment at the Cheltenham premises; and

(v) Mr Ammana's skills and experience in delivering spa baths.

48 Neither Mr Ammana nor Mr Gerges was aware of the actual weight of the Grand Bahama spa. In fact the Grand Bahama spa weighed approximately 355kg.

9 Both defendants pleaded guilty to each charge.

10 Ms L Doust of counsel appeared for the prosecutor and Mr G Coyne, solicitor, appeared for both defendants. The prosecutor relied on photographs of the incident site taken by Inspector Michael Kent dated 2 February 2010; a Factual Inspection Report of Inspector Kent dated 16 February 2010 and prior convictions certificates.

11 The defendants relied upon an affidavit of Mr Jihad Gerges affirmed 23 May 2013 and financial and safety documentation.

Relevant Principles

12 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8 (2) and 86(b)(i) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would assess the objective and individual subjective factors, with the appropriate weight given to each factor. The Court could (but not should) give some deduction in penalty for an element in the consideration, in such circumstances as where it better serves the interests of transparency, and this element should be narrowly confined (for example, the utilitarian value of the plea).

13 Their Honours recognised that the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach on the other. Under such a mathematical approach the sentencing court engages in a "staged sentencing process", starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]).

14 Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing, saying at [57]:

The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.

15 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]).

16 The object of the Act is to protect employees from risks to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.

17 In Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465, the Full Bench observed at [9]:

In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ... are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]:

'[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion."

18 Of particular relevance is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia:

. . .

(2)Aggravating factors

. . .

(d)the offender has a record of previous convictions,

...

(g)the injury, emotional harm, loss or damage caused by the offence was substantial,

. . .

(3)Mitigating factors

. . .

(e) the offender does not have any record (or an significant record) of previous convictions,

...

(g)the offender is unlikely to re-offend,

...

(k)a plea of guilty by the offender (as provided by section 22)

(l)the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m)assistance by the offender to law enforcement authorities (as provided by section 23)

. . .

Consideration

19 In a consideration as to penalty, the court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474):

...in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence"...

And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]:

In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk, In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected....

20 The corporate defendant was involved in the delivery of spa baths. From 17 October 2009, the defendant corporation engaged Noah Ammana as a "delivery offsider" to assist in carrying out the delivery of spa baths. On 19 October 2009, Mr Ammana was working with Mr Gerges who was the Director of the corporate defendant.

21 Mr Gerges and Mr Ammana drove to Spa World Seven Hills and loaded a Grand Bahama spa weighing approximately 355 kilograms onto the defendant's utility vehicle for delivery to a property in Cheltenham.

22 Upon arriving at the property, Mr Gerges reversed the utility vehicle down the driveway to a carport. Mr Gerges and Mr Ammana then slid the spa across the tray of the utility vehicle until it tilted and dropped on to the ground. Evidence persuades that the spa had electrical and other components in one end of it, which end was more weighty than the upright end of the spa. Therefore, it was the weighty end of the spa that was placed on the ground.

23 Mr Ammana and Mr Gerges then lifted the spa into a nearly upright position so that the spa was touching the timber roof frame of the carport. Mr Gerges then pushed the spa further upright. One side of the spa base was in contact with the rear of the utility vehicle. Mr Gerges then directed Mr Ammana to go to the side of the vehicle with which the base of the spa was not in contact and to hold the spa in place while he, Mr Gerges, moved the utility vehicle to make more room to manoeuvre the spa.

24 Mr Ammana then stood between the spa and the utility vehicle to hold the spa at a point halfway between the corner of the base side and the centre of the spa. It is alleged, and it is agreed, Mr Gerges inquired whether Mr Ammana was "right to hold the spa" to which Mr Ammana said "yes".

25 The difficulty was that the spa, as it is alleged, could not be held fully upright because it would have touched the roof battens on the carport. Mr Gerges was therefore required to move the utility vehicle. Mr Ammana took two steps backwards up the driveway away from the spa but fell into the driveway gap.

26 The spa then fell upon Mr Ammana striking him across the pelvis. As a result of the incident, Mr Ammana suffered three fractures to his pelvis, major trauma to soft tissue ligaments and tendons, nerve damage to his lower back and major trauma to the ligaments of his left leg.

27 Mr Ammana received medical treatment following the incident.

28 The first charge against the corporate defendant under s 8(2) of the Act is directed to failure of the corporate defendant to provide a safe system of work in that it did not provide a mechanical aid for the lifting of the spa from the back of the utility; failed to support the spa bath by other means other than by being held by a person; failed to ensure that sufficient personnel were available, failed to ensure the weight of the spa was known to the assistant and failed to request and utilise further assistance in these circumstances. It is also alleged that the corporate defendant failed to undertake any or adequate risk assessment of the task on the particular date; failed to provide adequate information and instructions to Mr Ammana and failed to provide supervision. I will deal with the latter particular shortly.

29 The corporate defendant admits the charge under s 8(2) and enters a plea of guilty. On the evidence most particulars of the charge are established. However, the particular related to supervision, required the defendant not to undertake the lifting of the spa bath without supervision and that a supervisor should direct persons to support the spa bath by means that ensured there were additional personnel to carry the weight of the spa bath. Mr Gerges was on site. I do not accept there was failure to properly supervise. The particulars repeat the failures in the unsafe system. Mr Gerges had to have a safe system in place. He was there to supervise and was supervising an unsafe system. This particular did not, the way it is fashioned, make any contribution to the risk.

30 However, I do accept the other failures particularised as to the unsafe system of work have been established on the evidence. Therefore, there was an unsafe system of work in place and the defendant is guilty of a breach of s 8(2) of the Act.

31 A foreseeable element to an offence makes it more serious. Mr Coyne, solicitor, representing the defendants, contended that while it was foreseeable in the circumstances that the offence could occur, the Court would, however, consider this was an unusual act of circumstance. Mr Gerges claims he has been able to perform the task safely over the four years since he had acquired the business and, since the incident in October 2009, has continued to perform the task without problems. He opined that it was the obstruction provided by the carport's limited height which was an aggravating element to this offence. However, a proper risk assessment of the task would have identified that difficulty. The Court determines there will be a small element of foreseeability in penalty for the unsafe system.

32 There is a need to consider the elements of deterrence both specific and general in the consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384, in a consideration of breaches under the Occupational Health and Safety Act 1983, it was held by Hungerford J (at 388):

I ... would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows:

The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive.

33 In Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 the Full Bench said at [74]):

[The] Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that 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 Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare ...

34 In dealing with the issue of specific deterrence, the Court in Capral noted, at [76]:

... the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence ...

and further:

The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence.

and at [77]:

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 case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace.

35 In consideration of penalty, there must be an element of specific deterrence. While Mr Gerges had a system of work in place it was not adapted to the particular circumstances. Systems of work must be living documents and the system must be adaptable to the circumstance of the specific task. While Mr Gerges has refined the system now in place it is the Court's view that that system may need further refinement. There will be an element of specific deterrence in penalty.

36 As to general deterrence, once more an industry must be reminded of the need to risk assess each task required in the performance of their business. This was a small business. The task of delivering a spa to a site was always a duty performed by the business. Each site as a matter of fact will have different problems. In such a circumstance each site must be risk assessed and adjustments made to the system of work which gives recognition to the possible risks identified in a risk assessment on the particular site. There will be an element of general deterrence in penalty.

37 In the development of awareness of occupational health and safety standards on worksites, what the incident exposed is that there is now much attention given by employers to the relevant principles in preparation of documentation for safe working procedures but there must also be real attention given to on site work methods following risk assessment of particular tasks.

38 In these circumstances the words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 are most apposite (at 5):

The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the breach and its foreseeability are clearly relevant...

39 The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the breach and its foreseeability are relevant. The incident demonstrates the gravity of the risk to persons who are performing tasks that are not risk assessed.

40 The risk in the circumstance is reflected as a serious breach of the Act.

41 In Matter No IRC 1614 of 2011, the corporate defendant is also charged under s 86(1) in that it failed to notify the incident to WorkCover.

42 I am satisfied that on 19 October 2009 the defendant corporation was in charge of the operation being conducted at the premises. I am satisfied Mr Noah Ammana was injured in the course of the delivery, when the spa bath fell on him.

43 I am therefore satisfied, given I have held the incident was serious, it was one which required notification (Clause 341) (Clause 34(a) and (b)) of the Occupational Health and Safety Regulations 2001.

44 The timing in which such notifications were required to be made under the Act is as soon as is practicable (but no later than seven days) after the defendant became aware of the incident. The defendant did not notify within the said date. It was said when Mr Gerges went to the hospital to see Mr Ammana, he was informed by the sister of Mr Ammana, that WorkCover would be advised. However, the obligation is on the employer to notify an incident at a workplace within seven days. If Mr Gerges had been clearly told the notification had occurred under the Act, he may have mitigated or there may have been no offence, but that did not occur in the circumstances. Therefore, the defendant corporation had an obligation to ensure notification.

45 Further, I accept the view of Haylen J in the circumstances as referred to in Inspector Janet Corbett v BBC Hardware Pty Limited and Bunnings Pty Limited (2006) NSWIRComm 401 where he considered a similar circumstance. His Honour took the view that this was an "unintended oversight". In the circumstances before me, I take the view that this was also an unintended oversight.

46 In Matter No. IRC1613 of 2011, Mr Gerges individually is charged, given the deeming provisions of s 26(1) of the Act, under s 8(2) with failing to provide a safe system of work for Mr Ammana. He is the sole Director of the corporation and the controlling mind of the corporation. Mr Gerges, under s 26(1), the deeming provisions of the Act, is to ensure a safe system of work at his place of work in the performance of his undertaking for persons at the site, namely, Mr Ammana.

47 The particulars relied upon in the s 8(2) charge brought against Mr Gerges as Director of the corporation are the same as to those of which the corporate defendant has been found to be in breach. Therefore, under the deeming provisions as the Director of the corporation, Mr Gerges is also guilty of the charge under s 8(2).

48 There is a need to confirm that measures have since been taken to alleviate the risk identified in these charges. Evidence has been placed before the Court on this issue. Since the incident Mr Gerges has leased a truck which is equipped with a HiAb lifting crane which is now used for deliveries. He tendered photographs showing the vehicle with the HiAb attachment with a spa located on the tray of the truck and further photographs showing the trolley which is still used in most instances to remove the spa.

49 Mr Gerges opined he does not use the HiAb in all deliveries and it is sometimes more practical to simply slip the spa off the back of the truck and on to the trolley.

50 He opined as to the advantages of having the HiAb available on the back of the truck. It is a lifting crane and, where there are difficult conditions encountered on a delivery site, the HiAb can be used to overcome those difficulties and lift the spa over obstacles that might otherwise prevent a more simple means of delivery.

51 Since the incident Mr Gerges contacts the customer by telephone with a list of questions with regard to the topography of the delivery site. He asks the customer to identify any difficulties which might be confronted by the corporate defendant's vehicle of the defendant on delivery. He then exchanges emails with the customer confirming the details of the site and upon that basis he decides whether to visit the site prior to the delivery being effected.

52 He also requests that the customer sends to him photographs of the relevant areas of the delivery site. He then identifies any additional difficulties and makes the decision whether it is possible for him to practically and safely deliver the spa to the site or whether some other arrangement needs to be made.

53 If it is determined that the site is safe, with no particular difficulties, he will proceed with the delivery. He has however formulated a list of instructions for his assistant in relation to unloading the spas, safe loading procedures and the appropriate use of equipment and he requires that an assistant reads those instruction sheets before each delivery.

54 The Court expressed its concern as to the new system of work in place. The Court's concern was whether the new system could still expose both the assistant and Mr Gerges himself to holding considerable weight in the movement of a spa. WorkCover has agreed under the "close the loop" policy to re-visit Mr Gerges' operation to assess the new system in place and give guidance as to safe work practice. It is unfortunate that given this offence occurred in October 2009 such as a follow up has not yet occurred. As a small business person, Mr Gerges needs that guidance.

55 Some reliance is placed on the evidence from the Swimming Pool & Spa Association of NSW. The industry organisation opined:

The Swimming Pool & Spa Association of NSW is not aware of an existing Australian Standard or documented Guideline/s in relation to the manual handling of spa baths.

...

The Swimming Pool & Spa Association of NSW's observation of the industry relating to the "manual handling" of portable spas is the use of a fork lift (mechanical or manual) or a crane where site access is problematic.

56 Mr Gerges appears in his amended system of work to have followed these guidelines.

57 Both defendants are entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of each offence.

58 In Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99, the Full Bench (Hungerford, Marks and Schmidt JJ) observed (at 106):

We accept that there are good policy reasons for the encouragement of early pleas of guilty and the giving of assistance to the WorkCover Authority in its investigation of suspected breaches of the OHS Act...

59 A plea of guilty may attract a greater degree of leniency in penalty. In Winchester v Regina (1992) 58 A Crim R 345, Hunt CJ held (at 350):

A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will be determined upon many different factors. The plea may in some cases be an indication of contrition or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the person has pleaded guilty.

60 The defendants entered early pleas of guilty to both original summonses and amended summonses in accordance with the principles recited in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104. I find each offence will attract a 25 per cent discounted penalty for the utilitarian value of the plea.

61 The Court is entitled to take into account the financial status of both defendants. Mr Gerges revealed he pays $1400 per month, which he is required to do over a period of three years, to repay the insurer for some of the compensation payments that have been paid to Mr Ammana.

62 He opines that the company has no substantial assets except for a small equity in the truck which is under a lease purchase agreement. His family relies upon the business to provide an income to him. He has no other source of income. His wife and he own a home in Hinchinbrook which is valued at $380,000. It is, however, the subject of a mortgage to Westpac. The amount of the mortgage is $320,000. They pay $2,000 a month on that loan. They have a further two other loans to the value of $75,000 with payments of $1,550 per month which are for the family car and for repayment to Mr Gerges' wife's sister for money she lent, presumably as a deposit on the house.

63 As is already revealed the company is leasing a Hyatt equipment truck and they pay $2,500 per month for that and the lease is for five years. It is only one year into the lease agreement. The Court has examined all the financial records before it. Mr Gerges took from the earnings of the corporation in 2009 the sum of $7,910 for Directors' fees and $25,567 for wages. In 2010, he received Directors' fees of a similar amount and wages of $25,338.

64 The financial records establish the business suffered a loss of some $3,000 and in 2010 a small profit after tax of $13,887.

65 The evidence was Mrs Gerges takes the orders and assists him on the telephone in relation to the business. The documents do not verify any splitting of the income but the Court is satisfied Mr Gerges receives only a minimum income from the business.

66 The Court finds both the corporate defendant and the individual defendant have very limited means.

67 I am satisfied Mr Gerges is a good corporate citizen. He provides through his business venture some work for others. He works in an industry where there has been a downturn but he perseveres. The Court takes into account all the above matters but notes penalty must reflect the seriousness of the offence.

Orders

68 In matter No IRC1615 of 2011, I find the corporate defendant guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000. The maximum penalty for such a breach is $550,000 under the Act.

69 The corporate defendant is fined in the sum of $15,000 with a moiety to the WorkCover Authority.

70 In matter No IRC 1614 of 2011, I find the corporate defendant guilty of the failure to notify an incident under s 86(1)(b) of the Occupational Health and Safety Act 2000. The maximum penalty for such a breach is $55,000.

71 The corporate defendant is fined in the sum of $2,000 with a moiety to the WorkCover Authority.

72 I have considered the question of totality but an overview of the facts do not persuade that the failure to notify is other than a separate and distinct charge with no similar elements to the s 8(2) charge. There shall be no totality principle applied to penalty.

73 In matter No IRC1613 of 2011, the charge is against the individual defendant as the Director of the corporation brought in accordance with the deeming provisions of s 26(1) of the Act under s 8(2), I find the defendant guilty. The maximum penalty for the charge is $55,000.

74 The individual defendant is fined in the sum of $2,000.

75 The defendant shall pay the Prosecutor's costs as agreed or assessed.

Decision last updated: 29 June 2012