The information published below refers to matters where there was a finding of guilt and a conviction. Convictions that are spent under the Spent Convictions Act 2000 are not included.
Magistrate's Decision
Date of offence: 24/10/2008
Date of decision: 10/02/2012
The concrete floor of an office building collapsed during construction. A few days before the incident, formwork backpropping supporting the basement level of the building had been removed to allow water tanks to be put in place. On the day of the incident the concrete for the ground floor was poured. However, the remaining formwork could not support the weight of the wet concrete and the existing slab. The floor began to bow and fifteen minutes later it gave way, crashing to the floor of the basement levels below it. Fortunately someone had noticed the floor giving way and the area was evacuated so that no one was injured.
Charge: The formwork company K-Form Pty Ltd pleaded guilty to a charge under section 47 of the Occupational Health and Safety Act 1989 (failure to comply with a safety duty), maximum penalty $50,000 for a corporation
Two individuals also pleaded guilty to charges under section 47, maximum penalty $10,000 for an individual.
Plea:: Guilty
Penalty:K-Form: $15,000
Individuals: offence proved with no conviction recorded under section 17 of the Crimes (Sentencing) Act 2005 (ACT)
Court: ACT Magistrate’s Court, Magistrate Walker
The Magistrate’s reasons include:
[51] “The authorities make clear that general deterrence has a particular significance in this type of case, even where no actual injury has resulted from the breach occasioned.”
She also referred to the summary of applicable principles in Rocla Pty Limited v Inspector Timothy John Cody [2007] ACTSC 9 (15 February 2007)
WorkSafe case summary
Date of offence: 17/01/2008
Date of decision: 22/02/2010
The company was contracted to manage the demolition of sections of the Cameron Offices in Belconnen. During the demolition a portion of the building collapsed over the safety barrier and crushed a car on a nearby public street. No one was injured, although there was the potential for serious injury to workers and members of the public. The charges related to the lack of proper enquiries regarding the type of building structures being demolished.
Charges: Delta Pty Ltd was charged with two breaches of section 47 of the Occupational Health and Safety Act 1989 (failure to comply with a safety duty), maximum penalty $50,000 for each charge (CC2009/42106, CC2009/41330)
Penalty: Convicted and fined $5,000 for each charge, a total of $10,000
Court: ACT Magistrate’s Court, Magistrate Campbell
Date of offence: 30/08/2006
Date of decision: 21/08/2009
An employee of Tower Scaffolding was injured when he fell 6 metres from scaffolding being used on a construction site. The accident happened as the scaffolding was being dismantled. The employee, who was a trainee, tripped over debris left on part of the scaffold. Because a cuplock on the railing of the scaffold was unsecured, the railing dislodged and the employee fell approximately 6 metres and sustained multiple compound fractures to his ankle.
Charges: Tower Scaffolding (ACT) Pty Ltd was charged with a breach of section 47 of the Occupational Health and Safety Act 1989 (failure to comply with a safety duty), maximum penalty $50,000
Penalty: Convicted and fined $5,000 plus court costs of $55
Court: ACT Magistrate’s Court
WorkSafe case summary (Territor Commercial Roofing)
WorkSafe case summary (Skeers)
Supreme Court decision
Date of offence: 05/03/2003
Date of final decision: 17/09/2009
An employee of Territory Commercial Roofing Pty Ltd died while installing metal cladding on a building. Patrick Skeers was the company supervisor on site and a director of the company. The old asbestos roof and walls of a large warehouse building had been removed and the roofing company was engaged to replace the roof and walls of the building with colourbond cladding. The man and another worker were attaching the colourbond cladding to the exterior of the building frame by screwing it to timber battens. They were using power tools that were plugged into the mains power supply. On the wall where the men were working there was a power cable attached to the underside of a timber batten which was at about eye height. One of the workers started attaching the cladding at the right hand end of the wall. At this point he inadvertently pieced the electric cable with a screw that made a connection with the wire. Later in the morning the other worker continued to attach the cladding along the wall. He was up a ladder performing this task when he received a severe electric shock. He unknowingly earthed the electric current that was flowing on the roof and wall he was working on by leaning against the metal ladder and touching the steel structure of the building and was electrocuted.
Charges: Territory Commercial Roofing Pty Limited was charged with a breach of section 27 of the Occupational Health and Safety Act 1989 (duties of employers in relation to employees). Maximum penalty $125,000
Patrick Skeers was charged with a breach of section 29 of the Occupational Health and Safety Act 1989 (duties of a person who has, to any extent, control of a workplace). Maximum penalty $25,000
Pleas: Not Guilty
Initial court decisions and penalties:
ACT Magistrate’s Court, Magistrate Fryar, 31/03/2008
Territory Commercial Roofing Pty Limited convicted and fined $30,000 (CC04/50052)
Mr Skeers convicted and fined $12,000 (CC04/50053)
Appeal court: ACT Supreme Court, Besanko J
Result on appeal: The company and Mr Skeers appealed the Magistrate’s decisions. Their appeals were dismissed and the penalties of $30,000 and $12,000 stood.
Regarding the nature of these appeals - an appeal to the Supreme Court from the Magistrate is by way of rehearing, [at 21] “nevertheless, this court will only interfere with the Magistrate’s decision where an error of law or fact is established”
The appellants argued that the prosecution had not proved beyond reasonable doubt that they had not taken all reasonably practicable steps as required. Also in issue was whether Mr Skeers had control, to any extent, of a workplace.
The judge said [at 26] “The central issue was whether the appellants and each of them had taken all reasonably practicable steps for the purposes of the statutory provisions.” He found that Mr Skeers was a person with control as he was the direct supervisor of the employees and also a director of the company who had the authority to determine how and when his company employees would perform the work that was contracted to be done. The question of control was not limited to the immediate work area, but also sufficient control to make proper arrangements with the building owner or his delegate in relation to the work to be performed and the environment in which it was to be done
[37] “. . .it was open to the Magistrate to conclude that the appellants had not taken all reasonably practicable steps within the relevant sections.” This was for two reasons, firstly that the appellants failed to identify the hazard of a screw penetrating the electric cable and, secondly, that the appellants had failed to insist that the power to the cabling was cut off.
[44] “The Magistrate’s finding was that the appellants failed to insist that measures be undertaken by others or that they instruct their workers not to commence work on the site.”
The court noted that the fact that other people on the site also had responsibility for safety did not excuse the roofing company and Mr Skeers from meeting their own obligations:
[45] “The appellants emphasised evidence from various witnesses as to the responsibility of others on the site to undertake various safety measures. No doubt if others who had some control over the site had undertaken various safety measures that would be relevant to the question of what were the reasonably practicable steps which must be undertaken by the appellants. However, the mere fact that others had an obligation to do so is of no or certainly little relevance.”
Magistrate's decision
Date of offence: 4/6/2004
Date of decision: 26/10/2007
An employee died while working on the roof of a shipping container which was used by the company to store equipment on the roof. The employee was standing on top of a 2.6 metre high shipping container, removing 60kg light poles, when he fell to the ground and a light pole fell on top of him.
Charge: Nexus Projects Pty Ltd was charged with a breach section 27 of the Occupational Health and Safety Act 1989 (Duties of employers in relation to employees), maximum penalty $125,000
Plea: Guilty
Penalty: $30,000
Court: ACT Magistrate’s Court, Magistrate Doogan
Date of offence: 07/12/2004
Date of decision: 27/06/2007
An employee of a logging business sustained fatal injuries when he was crushed inside the cabin of a forwarder (tractor). The deceased worker was working alone delivering the forwarder to the Uriarra Forest on a prime mover. Wet conditions on the dirt road made conditions difficult. He had placed ramps at the back of the truck to drive the forwarder off, but the machine did not stay aligned with the ramps. As he drove the machine off the back of the truck, it rolled over and off the side of the truck. He was found trapped in the crushed cabin several hours later, and died the next day from his injuries.
Charge: AB Enterprises Pty Ltd was charged with a breach of section 49 of the Occupational Health and Safety Act 1989 (Failing to comply with a safety duty, that failure caused serious harm, and the defendant was negligent about whether the failure would cause serious harm). Maximum penalty $1,000,000
Penalty: $35,000
Court: ACT Magistrate’s Court, Magistrate Fryar
[at 12] “Clearly the issue of foreseeability is relevant to the objective seriousness of the offence charge, and that has to be the starting point in considering the level of penalty in matters such as this.”
[at 22] “It has long been held that breaches of the occupational health and safety legislation are most serious matters, and indeed that is a truism reflected in the maximum penalty available to be imposed. The issues of general and specific deterrence must be given prominence in any sentencing considerations. . . . this is a regulatory field designed to regulate in a preventative way the future conduct of employers and for that reason alone the deterrent effect of penalties must be reinforced.”
Date of offence: 24/05/2005
Date of final decision: 15/02/2007
An employee sustained serious injuries to his arm and wrist when he was pulled into and trapped between rollers of a conveyor belt.
At the time of the accident the worker was pouring concrete into moulds on a vibrating table in the company’s pipeline production premises. A bar on the machine knocked his left hand upwards between the small and large rollers of the conveyor belt. His glove was caught by the tip of his fingers and he was pulled in first by his finger and then by his arm. He was drawn in to a position where he could not reach the stop switch. Another employee shut down the machine. The conveyor had to be dismantled to free the worker, who sustained fractures and crush injuries to his left wrist and arm and suffered psychological trauma.
Charge: Rocla Pty Limited was charged with a breach of section 49 of the Occupational Health and Safety Act 1989 (failing to comply with a safety duty, that failure caused serious harm, and the defendant was negligent about whether the failure would cause serious harm). Maximum penalty $1,000,000
Initial court decision and penalty:
ACT Magistrate’s Court, Magistrate Madden, 07/08/2006
Convicted and fined $200,000
Appeal court: ACT Supreme Court, Higgins CJ
Result on appeal: The company appealed the Magistrate’s decision on the basis that the penalty was excessive. On appeal the penalty was reduced to $100,000.
Key points from the decision include:
[26] [quoting with approval the Magistrate’s remarks] “There is persuasive Supreme Court authority in the Australian Capital Territory to the effect that the workplace must be a safe environment, free from the risk of harm to the workman (see McCracken v Johnston [2003] ACTSC 74; Erindale M Pty Ltd v Curran [2004] ACTSC 69). The objects of the legislation are well defined. It is the prevention of workplace injury. There is a principle to encourage high standards of vigilance. The deterrence element is of critical importance in the interests of workplace safety. Conditions for a safe working environment must be implemented and applied by those in the commercial and industrial scene in addition to the supervision by the regulatory authorities. The safety of the workman must be of paramount consideration to any employer where the employee is engaged in duties involving dangerous machinery particularly where life or limb may be at risk.”
[35] “. . . the need for specific and general deterrence was especially important in occupational health and safety matters. The purpose of penalties at the level prescribed is to instil a high level of ongoing advertence to safety issues and to encourage those in control of work places to engage in pro-active measures to avoid foreseeable risks of injury.” .
[46] “I fully accept that the level of penalty to be imposed should, as Mr Doig submitted, citing both Lancaster (supra) and Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610: ‘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 risk to their health and safety at the workplace.’”
[48] “. . . I think it is a fair criticism that the appellant’s genuine efforts to remedy the wrong to its employee and its ongoing efforts to ensure future safety received inadequate recognition in the level of penalty imposed.”
WorkSafe case summary (Murray)
WorkSafe case summary (Langbein)
Date of offence: Between 23 April 2003 and 7 May 2003
Date of decision: 19/12/2005
A number of construction workers were seriously injured when a structure they were working on collapsed.
Construction Control Pty Ltd had a contract with Canberra International Airport Pty Ltd for the design and construction of a special purpose aircraft facility at the RAAF Fairburn base including an aircraft hangar. Construction Control then arranged for Strarch International Ltd to design and construct the hangar structure. Mark Langbein was the CEO of Strarch and Craig Murray was the project manager. The roof of the hangar was to be installed by subcontractors, Spantech Pty Ltd and Legion Roofing South East Asia Pty Ltd.
A number of factors including slow construction progress because of problems with the roof sheeting led to changes made to the original method of erecting the hangar structure. On 7 May 2003 the hangar structure collapsed. Twelve workers were injured in the collapse, many of them with serious injuries. Most of them were employees of the roofing subcontractors, others were employees of other companies working on the site.
Charges: Craig Murray and Mark Langbein were each charged with a breach of section 29 of the Occupational Health and Safety Act 1989 (Duties of a person with, to any extent, control of a workplace), maximum penalty $25,000
Penalty: Each convicted and fined $18,000
Court: ACT Magistrate’s Court, Magistrate Madden
[46] “The safety of the workmen in a workplace of the magnitude of this Hangar project was of paramount consideration. The project warranted the utmost vigilance by those in charge of the workplace. The legislature has clearly impressed upon the Courts, by reason of the amount of the penalty, that the question of deterrence, both general and specific, is of critical importance.”
[50] “The legislative objectives are well defined. It is the prevention of workplace injury. There is a principle to encourage high standards of vigilance, the avoidance of negligent, lazy or cost-cutting measures in the interests of financial viability. The deterrence element is of a critical importance in the interests of workplace safety. Such safety and workplace conditions must be implemented and applied by those in the commercial industry in addition to the regulatory authorities. A sensible compromise and working balance needs to be applied to ensure occupational health and safety principles are applied without necessarily impacting in a negative way on commercial / business enterprise and initiative. There needs to be a balanced mix but overall the safety factors must be of primary consideration before financial factors (see also Boral Building Services Pty Limited v Gazely (1997) ACTSC 68).”
Date of offence: Between 12 April and 5 May 2003
Date of decision: 5/07/2006
This case arose out of the collapse of an aircraft hangar at the RAAF base in Fairburn in 2003 (see summary for Craig Murray and Mark Langbein). Legion Roofing South East Asia Pty Ltd was the subcontractor who carried out the roof installation. The company was placed into liquidation and deregistered soon after the incident and then reregistered following an application to the ACT Supreme Court.
Charges: Legion Roofing South East Asia Pty Ltd was charged with a breach of section 27 of the Occupational Health and Safety Act 1989 (Duties of employers in relation to employees), a breach of section 28 of the Occupational Health and Safety Act 1989 (Duties of employers in relation to third parties) and four breaches of section 25 of the Occupational Health and Safety (Certification of Plant Users and Operators) Regulation 2000 (employees did not hold certificates of competency for operating plant).
Plea: No plea entered, heard ex parte
Penalty: Convicted and fined a total of $126,200
Section 27 breach (CC04/50506) fined $75,000
Section 28 breach (CC04/50597) fined $50,000
Regulation breaches (CC04/50492-50495) fined $300 each for 4 breaches
This case arose out of the collapse of an aircraft hangar at the RAAF base in Fairburn in 2003 (see summary for Craig Murray and Mark Langbein). Mr Livingstone was self employed as a subcontractor on site working on stressing cables.
Charges: Mr Livingstone was charged with a breach of section 25 of the Occupational Health & Safety (Certification of Plant Users and Operators) Regulations 2000 (operating an elevated work platform without a certificate of competency)
Penalty: Convicted and fined $200 plus court costs of $50 and criminal injuries compensation of $50
Date of decision: 23/11/2004
This case arose out of the collapse of an aircraft hangar at the RAAF base in Fairburn in 2003 (see summary for Craig Murray and Mark Langbein). Mr Spratt was the foreman for Legion Roofing South East Asia Pty Ltd. There were a number of safety issues with the work supervised by Mr Spratt, including inadequate fall protection for work on the hangar structure which was 12 metres above the ground.
Charges: Mr Spratt was charged with a breach of section 29 Occupational Health and Safety Act 1989 (Duties of persons in control of a workplace)and a breach of section 25 of the Occupational Health & Safety (Certification of Plant Users and Operators) Regulations 2000 (operating an elevated work platform without a certificate of competency).
Penalty: Convicted and fined a total of $2,500
Magistrate’s reasons for decision
Date of offence: Between 23 April and 7 May 2003
Date of decision: 15/02/2006
This case arose out of the collapse of an aircraft hangar at the RAAF base in Fairburn in 2003 (see summary for Craig Murray and Mark Langbein). Mr Langbein was the CEO of Strarch International Ltd and Mr Murray was the project manager. The company went into liquidation after the incident.
Charges: Strarch International Ltd was charged with a breach of section 29 of the Occupational Health and Safety Act 1989 (Duties of persons in control of workplaces), maximum penalty $125,000
Penalty: Convicted and fined $93,750
“It is of paramount consideration in an industrial workplace and building site that the safety of those men and women who may be engaged in the construction process be protected. The legislation is designed to bring down significant punitive penalties if there is a failure to properly and safely adequately safeguard the place of work.”
Date of offence: Between 20 March and 7 May 2003
Date of decision: 12/04/2005
This case arose out of the collapse of an aircraft hangar at the RAAF base in Fairburn in 2003 (see summary for Craig Murray and Mark Langbein). Spantech Pty Ltd had the contract for the roof installation. They subcontracted much of this work to Legion Roofing South East Asia Pty Ltd.
Charges: Spantech Pty Ltd was charged with a breach of section 29 of the Occupational Health and Safety Act 1989 (Duties of persons in control of a workplace)(CC04/50520) maximum penalty $125,000
Penalty: Convicted and fined $10,500 plus court costs of $55
This case arose out of the collapse of an aircraft hangar at the RAAF base in Fairburn in 2003 (see summary for Craig Murray and Mark Langbein). Mr Ward was the foreman for Spantech Pty Ltd.
Charges: Mr Ward was charged with a breach of section 29 of the Occupational Health and Safety Act 1989 (Duties of persons in control of a workplace)(CC2004/50504)
Date of offence: 30/08/2005
Date of decision: 09/05/2006
Two WorkCover inspectors saw Mr Gibson using a forklift at his place of work. They spoke with him and later confirmed through WorkCover’s records that he did not hold a certificate of competency to operate the forklift. Inspector Cody issued Mr Gibson with an Infringement Notice, sometimes referred to as an “on the spot fine”. The fine was not paid even after a Reminder Notice was issued, so the matter was heard in court.
Charges: Mr Gibson was charged with a breach of section 25 of the Occupational Health and Safety (Certification of Plant Users and Operators) Regulation 2000 (performing scheduled work without a certificate of competency)
Penalty: Convicted and fined $200 plus court costs of $55 and criminal injuries compensation of $50
Court: ACT Magistrate’s Court, Magistrate Cahill
Date of offence: 28/07/2004
Date of decision: 31/05/2005
Mr Dascarolis was a director and project manager of a building company. He and other company employees were working at a car showroom installing a gas heater up high on the showroom wall. Instead of using a scissor lift or elevated work platform to reach up to the work, Mr Dascarolis used a forklift and the other two workers were inside a large parts box sitting on the forklift tines. The parts box was not secured in any way. The two workers were injured when the parts box fell off the elevated forklift tines.
Charges: Mr Dascarolis was charged with a breach of section 29 of the Occupational Health and Safety Act 1989 (persons in control of a workplace)
Penalty: Convicted and fined $1,500 plus court costs of $54
Court: ACT Magistrate’s Court, Magistrate Burns
WorkSafe case summary (Kwikform)
WorkSafe case summary (Werahiko)
Date of offence: Between 13 February and 23 February 2004
Date of decisions: 8/04/2005 for Waco Kwikform Pty Ltd
12/05/2005 for Michael Werahiko
During the erection of a scaffold on a Civic construction site, a scaffolder was exposed to the risk of falling from height. Employees of the company working on the scaffold did not have adequate fall protection.
Charges and penalties: Mr Werahiko was charged with a breach of section 29 of the Occupational Health and Safety Act 1989 (persons in control of a workplace) (CC2005/40084).
He was convicted and fined $2,000 plus court costs of $104
Waco Kwikform Pty Ltd was charged with a breach of section 29 of the Occupational Health and Safety Act 1989 (persons in control of a workplace) (CC2005/40082).
The company was convicted and fined $2,000 plus court costs of $104
Court: ACT Magistrate’s Court, Magistrate Somes
Date of offence: 15/11/2002
Date of final decision: 20/08/2004
A young child fell off a chair and struck his face on an exposed post in the restaurant section of McDonalds Erindale. The post had become exposed due to the swivel chair top having been stolen by persons unknown some time earlier (possibly up to three months prior to the incident). The franchise operator Erindale M employees had placed a freestanding chair over the post. When the child stood up to move from one chair to another the chair tipped over and he fell face first onto the exposed post underneath.
The company appealed the Magistrate’s decision on the basis that the penalty was excessive. The appeal was dismissed.
Charge Erindale M Pty Ltd was charged with a breach of section 28 of the Occupational Health and Safety Act 1989 (Duties of employers in relation to third parties). Maximum penalty $125,000
ACT Magistrate’s Court, Magistrate Lalor, 08/04/2004
Convicted and fined $40,000
Appeal court: ACT Supreme Court, Justice Connolly
Result on appeal: The appeal was dismissed. The penalty of $40,000 stood.
The judge’s reasons include:
[at 9] “In rejecting a submission that it would be appropriate to dismiss the matter without recording a conviction, his Worship’s remarks are also consistent with the remarks of Higgins J (as he then was) in Boral Building Services Pty Limited v Gazley [1997] ACTSC 68 where his Honour said that –
... in cases [under occupational health and safety legislation] the primary objective of the legislature is to support deterrence. Thus provisions such as s 556A or low scale penalties will usually be inappropriate. The deterrence is largely implemented by means of substantial monetary penalties. A premium is placed on encouraging foresight, reflection and avoidance of risk rather than mere retribution for unforeseen but foreseeable consequence.
... Prevention of work injury and encouraging higher standards of vigilance are legislative objectives.”
[at 13] “It is no answer to a prosecution for a breach that the actual injury was slight, or that there was no injury. Ideally, any serious breach of occupational health and safety legislation will be detected before a worker or member of the public is injured. It is no answer to say in response to a prosecution for, say, failing to place a safety barrier around a hazard, that no one had yet been injured, or that the injury was only slight. In this case, it is no answer to say that the injuries were minor, for a fall in a slightly different manner could well have resulted in the loss of an eye.”
[at 17] “ In Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100, Boland J said at [18] that –
‘The consequences of a breach of the Act, however, are not the measure by which the amount of penalty is to be determined because it is the gravity of the detriment to safety that must be the Court’s focus. The consequences, however, may be a measure of the seriousness of the risk…
An offence …will be regarded as more serious than it otherwise might have been if the risk to safety was obvious or reasonably foreseeable and reasonably practicable steps were available to avoid the risks, but these steps were not taken.’”
Date of offence: 07/01/2003
Date of decision: 06/08/2004
A delivery driver sustained serious injuries as a result of being struck by a load which fell from a forklift. At the time of the incident the operator did not hold the relevant Certificate of Competency to operate the forklift and was not operating under a trainee logbook system. As a result of the investigation subsequent charges were laid against the company for failing to provide a safe work place for its employees and third parties. The investigation also revealed that Metal Mart had failed to establish designated work groups.
Charges: Metal Mart Pty Ltd was charged with and convicted of a number of breaches of the Occupational Health and Safety Act 1989:
Section 27 (Duties of employers in relation to employees), fined $4,000
Section 28 (Duties of employers in relation to third parties), fined $4,000
Section 37 (work groups designated by employers), fined $300
Penalty: Total penalties (as outlined above) of $8,300 plus court costs of $159
Court: ACT Magistrate’s Court, Magistrate Dingwall
ACT Supreme Court decision
Date of offence: Between 20/04/1997 and 14/07/1997
Date of final decision: 12/09/2003
The implosion of the Royal Canberra Hospital, Acton, occurred on 13 July 1997 and resulted in the tragic death of a 12 year old girl. The prosecution alleged that the explosives expert had erred in using bulk explosives without extensive testing to anticipate and guard against the expulsion of debris from the explosion site. There were unanticipated difficulties with the brittle steel columns that supported the hospital tower block. These difficulties were not resolved before the “deadline” created by the public promotion of the implosion. A crowd of 100,000 persons gathered around the hospital on the day of the implosion, mostly on the shores of Lake Burley Griffin. There were numbers of persons on small boats outside the “exclusion zone” of 400 metres. Pieces of debris, often weighing more than one kilogram and in numerous chunks, were projected into the lake amongst the craft, and across the lake to the opposite shores amongst the gathered crowds. One of those spectators, Katie Bender, was killed when she was struck by a piece of debris.
Charge: The defendant was charged with a breach of section 29 of the Occupational Health and Safety Act 1989 (Duties of persons in control of a workplace in relation to third parties). Maximum penalty $25,000 for an individual.
Initial court decision and penalty: ACT Magistrate’s Court, Magistrate Doogan, 06/07/2001
Convicted and fined $15,000
Appeal court: ACT Supreme Court, Chief Justice Higgins
Result on appeal: The appeal was dismissed. The penalty of $15,000 stood.
The judge’s comments include:
[at 12] “It was extraordinary, given the number and size of the projectiles expelled from the explosion site, that whilst some other injuries were inflicted and some vehicles were damaged, no-one else was killed.”
[at 43-46]”. . . additional measures were not taken, because the appellant did not consider the expense or the delay warranted. It was not doubted that he acted in good faith and that he was a well qualified explosives expert, but this was, at least for him, an unprecedented project. . . . He proceeded without the due care necessary to ensure that he was satisfied with the protective measures taken and the appropriateness of the exclusion zone. He could have delayed the implosion until he was so satisfied. . . . To cancel the implosion would have been a courageous call, but it was the defendant’s duty, if safety concerns remained unresolved, to make that call.. . Indeed, the penalty would have to reflect a strong deterrent element for that reason alone. That is, to strengthen the resolve of others in a like situation to firmly put the health and safety of employees and others to the forefront.”
[at 48] The essence of the offence is the failure to take all reasonable precautions to avoid risk to the health or lives of those who might be affected. That serious consequences did follow is not to be considered so as to punish the appellant for those consequences. They are relevant, however, to illustrate the nature and extent of the risks to be avoided and, consequently, the gravity of the responsibility upon (inter alia) the appellant to take precautions.”
Date of offence: 05/04/1995
Date of final decision: 12/09/1997
The defendant’s workers were erecting scaffolding at a construction site. The scaffolding had not been completed, which meant there were gaps on the decking and handrail at some points. Steel planks intended to be used to lay over the gaps in the scaffolding were protruding over the space. A bricklayer’s labourer also working on the site stepped onto one of the planks to access the area. The plank tipped and he fell about 8 metres.
Charge: Boral Building Services Pty Limited was charged with and convicted of a number of breaches of the Occupational Health and Safety Act 1989.
Section 34 (Duties of persons in relation to plant), fined $15,000 plus costs of $1,100
Section 27 (Duties of employers in relation to employees), fined $5,000
Section 28 (Duties of employers in relation to third parties), no additional fine
Maximum penalty $125,000 for each offence
Plea: Not Guilty
Initial court decision and penalty: ACT Magistrate’s Court, 10/03/1997
Found guilty, total penalties (as outlined above) of $20,000 plus court costs of $1,100
Appeal court:: ACT Supreme Court, Justice Higgins (as he then was)
Result on appeal: Appeals dismissed, total penalties of $20,000 stood. The judge’s comments include:
“In WorkCover Authority of NSW v Thiess Contractors Pty Ltd, (Full Court, Industrial Relations Commission of NSW, CT 94/1221, 19 April 1996, unreported) it was affirmed that in cases such as the present the primary objective of the legislature is to support deterrence. Thus provisions such as s556A or low scale penalties will usually be inappropriate. The deterrence is largely implemented by means of substantial monetary penalties. A premium is placed on encouraging foresight, reflection and avoidance of risk rather than mere retribution for unforeseen but foreseeable consequences.
That conclusion, supported in Alcatel Australia Ltd (supra), seems to me entirely appropriate. Prevention of work injury and encouraging higher standards of vigilance are the legislative objectives.”
“The consequences of the actual injuries, whilst relevant, are not as significant as the degree of risk created.”
“In my view, his Worship did not impose excessive penalties. Indeed, a penalty to some degree larger would have been justifiable. The appellant had caused or permitted a serious risk to the safety of workers on the site and had adopted a practice of lack of instruction or vigilance which might encourage further hazardous situations.”