On 23 November 2023, Judge Scotting issued his judgement against L&N Properties Pty Ltd in the matter of SafeWork NSW v L&N Properties Pty Limited [2023] NSWDC 512.
L&N Properties is run by a Nicholas Tarquinio from his Haberfield Home.
L&N employs no one full time but does have casual labourers and contracts any workers they need. It was disclosed by L&N in court that they have engaged WHS Auditor Byron Comninos (a Sydney based Lead Auditor from Bronte) and paid him $6,000 to review, update and enlarge its safety systems (following the incident).
During proceedings SafeWork were represented by Barrister Malcolm Scott and L&P were represented by Barrister Ian Latham (Mr Latham has written his own article on this matter).
L&P was the principal contractor engaged to remove and replace external cladding on a five-storey building at St Leonards, they engaged Z-Fellinni Faulkner as site supervisor and leading hand on the site. They Subcontracted out the management of the site to Think Tank Building Solutions Pty Ltd who in turn subcontracted Site-Wide Labour Services Pty Ltd and Mr Reza Aghakhani to work for them.
The building was comprised of commercial shops on the ground floor and five levels of residential units and office spaces above. The public entry to the building was accessed through glass doors on the ground level, which opened onto a foyer covered by a glass atrium roof 4.4 metres above the ground.
L&N was required to remove existing non-compliant façade cladding and replace the façade with compliant cladding material. Work on the site commenced on 12 August 2020. The removal and replacement of the external cladding was completed on 4 November 2020.
On 5 November 2020, Site-Wide was advised by both Mr Hafshejani (Think Tank's director) and Mr Faulkner that the cantilevered scaffolding system that Site-Wide previously supplied and assembled at the site was ready to be dismantled.
Due to staff shortages and inclement weather the dismantling of the scaffolding did not commence until 9 November 2020. It was expected to take approximately five days to complete.
On the morning of 12 November 2020, Mr Faulkner directed Mr Aghakhani as to the work to be performed on the day, which included the removal of flashing and panels over the glass atrium roof. This work arose specifically as a result of a variation of contract between L&N and the owner of the building. It was expected that this would take two days to complete.
On or around 12:30pm, Mr Aghakhani moved onto the glass atrium roof to collect tools and rubbish. This area had been declared an exclusion zone. At the same time, scaffolders on the fourth level of the scaffolding were stacking materials when a vibration or movement caused a 3.2m scaffold standard to fall off the scaffolding bay and onto the atrium four storeys below. The atrium shattered and Mr Aghakhani fell 4.4 metres to the ground floor. At the same time, Mr Emmanuel Savalakis, the courier, was walking through the glass atrium on the ground floor. Mr Savalakis was struck by large shards of glass.
Mr Aghakhani was immediately conveyed and admitted to Royal North Shore Hospital, where he underwent emergency surgery. His Injuries included fracture and dislocation of the right hip and acetabulum (acetabulum is the socket of the hip ball and socket joint); fractured nose and crushed teeth; dislocated left 4th finger (plate and screws inserted); severed nerve below the left 4th finger; and laceration to the right knee patella (kneecap) and partial laceration to the left patella.
In total, Mr Aghakhani spent 140 days in hospital (4 months and 20 days). He was stabalised in Royal North Shore and on 3 December 2020 he was transferred to Greenwich Hospital (which is actually more of a psychogeriatric and palliative care unit than anything else, not a fun place to be) where he remained until 1 April 2021.
Mr Savalakis was admitted to Royal North Shore Hospital on 12 November 2020. He sustained numerous cuts to his body and required stitches to his shoulder, right knee, right index finger and right knuckle. He was discharged from hospital on 13 November 2020 and was unable to return to work for three weeks following the incident.
Failings of L&N
there were multiple areas of missing scaffold components and unsecured scaffold components stacked at various locations, including on the working decks in and around where the scaffold standard fell
there were no toe boards in place on the scaffolding
there were no perimeter sheeting/shade cloths covering the scaffolding
there was no edge protection on the atrium roof, with only a single plastic bollard indicating the edge of the roof boarding the Pacific Highway
there was no evidence of covering to protect the glass atrium roof from falling objects
Contractor SWMS were inadequate (did not refer to persons walking on the roof of the glass atrium)
Mr Faulkner, who was supervising Mr Aghakhani at the time, watched and allowed Mr Aghakhani to enter the exclusion zone, knowing that scaffolding work was being carried out above him (lack of enforcement/provision of Information, Training and Instruction).
Penalty
As the director 'cried poor' the fine was reduced from $360,000 + $30,000 costs to $100,000 + $30,000 costs.
In total SafeWork will receive $80,000 from this prosecution.
Discussion
The problem is that this case lacks distinction. If you go through even the articles I've written since deciding mid-2023 to start covering every District Court WHS prosecution that falls from heights, scaffolding etc. remain the most common offences prosecuted.
People aren't learning and it is due to the "she'll be right" attitude they have as those that read these sorts of articles and reflect on them likely wouldn't commit these offences, those stupid and arrogant enough to think they are immune from error are not going to be swayed. I will still cover these but until SafeWork really start blitzing the construction sector and issuing PIN's aggressively, we will not see improvement. SafeWork have tried Amnesties, they have tried education and sadly for scaffolding matters it does appear that a zero tolerance approach is needed.
This incident highlights the huge potential for damage poorly erected scaffold plays in the construction sector and that scaffolding licences are really a joke these days. If anyone doubts that, I would even take on a challenge and get my scaffolding licence in a day or two just to show how meaningless they really are.