SafeWork NSW v Art Civil Pty Ltd [2023] NSWDC 379
On 15 September 2023 ART Civil were before Judge Strathdee charged with an offence against Section 32 of the WHS Act (often referred to as a Section 19/32 prosecution). The maximum penalty for this offence is $1,766,130. During proceedings they (ART Civil) were represented by Barrister Patrick Barry. The prosecution was represented by Barrister Anders Mykkeltvedt.
Overview of the company
ART Civil are a small civil works company (~10 – 15 workers) that held a restricted demolition licence. ART Civil’s clients include the University of Western Sydney, NSW Police Force + PCYC and Corrective Services NSW.
ART Civil describes itself as "For more than 15 years, ART Civil have been at the forefront of the construction industry supporting clients with demolition, civil works, asbestos removal, site clearance and many other needed services."
On 1 September 2020, ART Civil failed to comply a WHS Duty (s 19(1)) and exposed Mr Gary Williams to a risk of serious injury or death.
What happened?
The defendant started working at a site located at 12-14 Grosvenor Street, Neutral Bay NSW on 24 August 2020 and Mr Williams’ role at the site involved operating machinery for the demolition, stockpiling and loading of debris. Mr Ayed Haddad (company owner) supervised the works at the site (together with Mr Glenn McDougall) and attended the site each day.
On 1 September 2020 Mr Haddad instructed Mr Williams to demolish a structure on the site and to clean up after the demolition work was completed. Mr Williams commenced to do so using a Doosan excavator.
A Caterpillar 320E excavator arrived at the site about 1200 and Mr Williams decided to use it as he considered it a better machine for the job. Immediately prior to the incident, Mr Williams was operating it to demolish a building.
At approximately 2.00 pm, Mr Williams was removing debris from a first-floor concrete slab at the site. As he was dragging debris from the edge of the slab, a large metal lintel (a type of beam that spans a window opening) fell from the slab and punctured the glass front cabin window of the excavator. The lintel then struck Mr Williams’ left leg. An ambulance was called and conveyed Mr Williams to Royal North Shore Hospital.
The Failings of ART Civil
Mr Williams had not seen nor signed the SWMS. Neither Mr Haddad nor anyone supervising Mr Williams discussed the SWMS with Mr Williams prior to him commencing work at the site.
The Caterpillar excavator did not have a screen fitted to the front cabin window (despite it being a control measure in their SWMS) to protect the operator from flying objects, as it had been removed by a previous operator because it was causing visual obstructions. ART Civil is not aware when it was removed nor held any records documenting when an inspection was last conducted on the Caterpillar excavator.
ART Civil did not have any documented pre-start plant checklists for the period 1 August 2020 to 1 September 2020. Mr Williams was not provided with a checklist in relation to the excavators.
ART Civil deviated from Work Health and Safety Regulation 2017 (NSW), cl 214 by failing to manage the risks to health and safety associated with things falling on the operator of the plant.
ART Civil deviated from Work Health and Safety Regulation 2017 (NSW), cl 205 by failing to prevent alterations to or interference with plant.
ART Civil deviated from the SafeWork NSW Code of Practice for Demolition as well as AS 2601-2001 (The demolition of structures). NB – this Australian Standard is currently pending revision.
Mitigating factors
ART Civil had no prior convictions of a WHS Offence in the State of NSW.
ART Civil was deemed to be a ‘good’ corporate citizen.
ART Civil is unlikely to reoffend, given the steps that were taken after the incident.
ART Civil has demonstrated its remorse by providing evidence that it has accepted responsibility for the offence and has acknowledged the injury, loss and damage caused by the offending they committed. They have also ensured that Mr Williams is taken care of.
ART Civil co-operated with SafeWork NSW during its investigations.
ART Civil Plead guilty.
ART Civil engaged Sydney WHS Consultants ‘Compliance Council Pty Ltd’ to review their practices after the incident.
Conclusion
Given the almost ‘accidental’ level of the offending and the remorse shown, the judge really had no choice but to apply leniency which is certainly the case. This case should still serve as a reminder not to tamper with a machines safety features unless a proper risk assessment has been done and the modifications are done by an appropriately competent fabricator or engineer.