List of Prosecutions

Michael Azize v Samarkos Earthmoving Pty Ltd (7 December 2017)

Date of offence: 20 August 2015.

Date of decision: 07 December 2017.

On 20 August 2015 an excavator commenced demolition of a “Mr Fluffy” house without proper safety controls in place. The residential property in Torrens was scheduled for asbestos removal and demolition. The principal contractor for the project initially did not have adequate documentation in place in the lead up to the demolition, although this was prepared when required by WorkSafe ACT. The new demolition plan indicated that water would be sprayed over the house as it was being demolished, for dust suppression. However, before a hose was in place for water suppression, the excavator operator started demolishing the house, causing release of a dust cloud. The excavator operator continued the demolition while others were trying to get him to stop. There was no effective means of emergency communication between ground staff and the excavator operator, such as a walkie-talkie.

Charge: The company pleaded guilty to a charge under section 33 of the Work Health and Safety Act 2011 (failure to comply with a safety duty under section 19 – Category 3). Maximum penalty $500,000 for a corporation.

Plea: Guilty.

Penalty: $60,000

Court: ACT Industrial Magistrates Court, Magistrate Walker

Bradley Cummins v Paul Papas (7 December 2017)

Date of offence: 20 October 2016.

Date of decision: 12 October 2017.

On 28 October 2016 workers engaged by the owner of commercial premises in Fyshwick used a high pressure hose to clean the corrugated asbestos sheet roof of the building. Debris spread over the surrounding area. WorkSafe ACT inspectors attended, issued notices and arranged for remedial action to be taken under dangerous substances laws, including engaging asbestos specialists for the clean-up, at a cost to the Territory of over $150,000. These costs were paid by the defendant in addition to the penalties imposed by the court.

Charge: Mr Papas pleaded guilty to three charges under the Work Health and Safety Regulation 2011. Firstly, section 419, directing or allowing a worker to carry out work involving asbestos, maximum penalty $6,000. Secondly, section 427, failing to ensure that an asbestos register was readily accessible, maximum penalty $3,600. Thirdly, section 446, directing or allowing a worker to use a high pressure water spray on asbestos, maximum penalty $3,600.

Plea: Guilty.

Penalty: $900 for the section 419 charge; $540 for the section 427 charge; and $540 for the section 446 charge

Court: ACT Industrial Magistrates Court, Magistrate Walker

Bradley and Joanne Finnigan Pty Ltd v WorkSafe ACT (6 July 2016), SCA 94 of 2015

Date of offence: 05/08/2013.

Date of decision: 06/07/2016.

In August 2013 a young electrical apprentice fell approximately 3 metres from the first floor roof of a house when a ladder slipped from underneath him. He fractured his left wrist and right arm and suffered a severe laceration of his right leg.

The business owner and six electrical apprentices were working to install solar panels on a residential property with a split level roof. During the project the business owner left the site, leaving no qualified tradesperson present at the time of the incident.

The apprentice had been working on the upper level of the roof with a harness when he needed to climb down the ladder to access the next level down. During his descent he unhitched his safety harness and did not reattach it. As he tried to descend the next ladder it slipped out from beneath him, he lost his balance and fell 3.1 metres from the roof to the ground. The ladder had not been secured.

Charge: Section 32 of the Work Health and Safety Act 2011 (category 2 offence - failure to comply with a safety duty which exposes an individual to a risk of death or serious injury). Maximum penalty $1,500,000 for a corporation.

Plea: Guilty.

Initial Court decision and penalty. Magistrates Court of the ACT, Magistrate Walker sitting as the Industrial Magistrate Convicted and fined $140,000, with an adverse publicity order made under section 236 of the WHS Act

Appeal Court: Supreme Court of the ACT, Elkaim J

Result on Appeal: Appeal dismissed.

The company appealed the decision on the basis that the penalty was manifestly excessive. The appeal was dismissed and the defendant ordered to pay the fine imposed and comply with the Magistrate’s publicity order.

Key points from Justice Elkaim’s decision include:

[13] “. . .  It seems to me that where it is sought to show a fine is manifestly excessive there must be clear evidence of an excess over an appropriate range such that the court will almost automatically say that fine is simply too much. In my view that cannot be said in this case.”

The Magistrate’s reasons at first instance include:

“The risk of death from a fall of 3.1 metres is self-evident.”

“The fundamental duty of this court is to ensure that any penalty imposed is severe enough to compel attention to occupational health and safety issues.”

ACT Supreme Court Judgement

R v Canberra Contractors Pty Ltd [2016] ACTSC 13

Date of offence: 12 December 2011.

Date of decision: 29 January 2016.

On 12 December 2011 an experienced construction worker was killed when he was struck by a reversing grader at a civil construction site in West Belconnen. The grader was "trimming" the soil as part of the construction of a road. The pattern used by the workers was for the grader to move forward and use the blade to cut or shape a small amount of soil into a windrow, then reverse back and repeat the operation. The deceased worker was checking and marking soil levels at survey pegs placed at intervals along the proposed road site. This required him to crouch or kneel down to line up his hand held telescopic sight with the survey pegs and then give hand signals to the grader driver to indicate where and how deep the grader blade should cut.

At one point during that process, the grader reversed at an angle towards the area where the deceased worker was kneeling to check the grade of the road. The worker was not visible to the reversing grader operator. The worker appeared not to hear the reversing signal beeper of the grader or the warning shouts of his co-workers. He was struck by the grader and died from the injuries he sustained.

Charge: The company pleaded guilty to a charge under section 31(1) of the (now repealed)  Work Safety Act 2008 (negligent failure to comply with a safety duty which exposes an individual to a substantial risk of serious harm). Maximum penalty $550,000 for a corporation.

Plea: Guilty.

Penalty: $82,500.

Court: ACT Supreme Court, Justice Burns.

The Judge's reasons include: "This was an unnecessary accident which should not have happened. It is very clear that if appropriate supervision had been put in place and the appropriate protocols and rules complied with, this accident would not have occurred. It is accepted by the defendant that it was negligent in failing to provide and maintain a safe workplace and safe system of work." "No penalty that this Court may impose can equate to loss of human life. The death of the deceased was tragic and avoidable, but it was not an intended consequence of the activities of the defendant company. The evidence reveals a high degree of negligence for a short period of time."

It is necessary in sentencing to impose a sentence which makes it clear to others that a negligent failure to comply with a safety duty, which exposes someone to a substantial risk of serious harm, will have real consequences.

Anthony Noakes v IQON Pty Ltd (24 August 2015), CC 41606 of 2014

Date of offence: 1 July 2011.

Date of decision: 24 August 2015.

In July 2011 a subcontracted mechanical fitter was electrocuted after drilling into a concrete ceiling and coming into contact with live electrical wires embedded into the ceiling. Fortunately he was working in a plant room of the Canberra Hospital and an emergency team was on the scene quickly and was able to resuscitate him after he had been clinically dead for some minutes.

The defendant company was the principal contractor for construction works at the Canberra Hospital. This role included supervision of contractors and requiring them to complete safe work method statements detailing how identified tasks would be performed and how the risks associated with those tasks would be managed. Nexus Electrical Pty Ltd was the contractor engaged to remove old diesel tanks from a plant room. The safe work method statements submitted by Nexus failed to identify the step by step process for the removal of the tanks and failed to identify associated risks.

Nexus advised IQON that the tanks would be removed by drilling holes in the concrete ceiling of the plant room to insert dynabolts to support a winch. When he drilled into the ceiling, the worker came into contact with live electrical wires which were embedded in the ceiling and he was electrocuted.

Charge: The company pleaded guilty to a charge under section 30 of the  Work Safety Act 2008 (failure to comply with a safety duty). Maximum penalty $55,000 for a corporation.

Plea: Guilty.

Penalty: $15,000.

Court: Magistrates Court of the ACT, Chief Magistrate Walker sitting as the Industrial Magistrate.

Brett McKie v Kenoss Contractors Pty Ltd (in liquidation) (19 August 2015), CC 40210 of 2014

Date of offence: 23 March 2012.

Date of decision: 19 August 2015.

In March 2012 a truck driver died after the truck he was unloading came within arcing range of live overhead power lines at a civil construction work site.

The defendant company was carrying out excavation and road construction works as part of the redevelopment of the Barry Drive and Clunies Ross Street intersection in Turner, ACT. One of the materials storage compounds on the work site was situated underneath live overhead power lines. The area was fenced but the gate was not secured. There were other parts of the site which could have been used as an alternative location for a materials storage area. No arrangement had been made with an electricity supply authority to de-energise the power lines. The lines were not identified in any way, for example, with the use of "tiger tails" or other flag device. A number of piles of construction materials such as gravel had been delivered to the area prior to the incident.

The truck driver was delivering a load of gravel to the work site. He drove his truck to the secondary materials storage compound. As he tipped up the back of the truck to unload the gravel, the truck came close enough to the live overhead power lines for an electric arc to form between the lines and the truck. When the driver exited the truck he received an electric shock and collapsed. He died four days later.

Charge: The company did not enter a plea to a charge under section 32 of the   Work Health and Safety Act 2011 (category 2 offence - failure to comply with a safety duty which exposes an individual to a risk of death or serious injury), safety duty under section 19 of the Act. Maximum penalty $1,500,000 for a corporation.

Plea: Not entered, treated by the court as a plea of not guilty.

Penalty: $1,100,000,

Court: Magistrates Court of the ACT, Chief Magistrate Walker sitting as the Industrial Magistrate.

The Magistrate's comments include: Although the company is in liquidation, this does not prevent the court sentencing the defendant or imposing a penalty. The magistrate acknowledged that a financial penalty will be difficult if not impossible to enforce.

There was a poor corporate culture in the company's management of safety issues, including a failure to make changes even after a prohibition notice had been issued to the company a few years earlier for working near overhead power lines.

The foreseeable risk of overhead power lines is well known. Although there were simple and inexpensive methods available to manage the risk, those steps were not taken.

It is more important than ever to consciously address the well known risk of working near overhead power lines.

Joseph Bartlett v Corporate Ventures (Aust) Pty Ltd (3 June 2015), CC 41162 of 2014

Date of offence: 22 October 2012.

Date of decision: 3 June 2015.

In October 2012 a 21 year old worker received serious injuries when he fell more than five metres into a void while cutting penetrations in construction panels on a building site.

The defendant was contracted to supply and install "speed panels" for the new Nishi building in Acton, ACT. Speed panel is a fire and acoustic rated construction system made up of aerated concrete panels enclosed in galvanised steel. The injured worker was engaged to install the panels and to cut holes in them to accommodate air conditioning plant. Most of the holes were smaller penetrations, but larger holes in the panels were later needed to allow the installation of louvres into the panelling.

The worker had carried out some of this work in the week prior to the incident. On the morning of the incident, he asked the project engineer for some help for the work he had to do on that day. The project engineer told him to complete the job alone. The worker was in an area which was poorly lit, and on the other side of the panel he was to cut into there was a drop of 5.4 metres into a void. Despite this, no protective measures were in place.

Later that morning, the worker and part of the speed panel that he had been cutting fell forward through the void to the ground below. He tried unsuccessfully to call an ambulance using his mobile phone, and eventually another contractor heard him yelling and came to his aid. The worker's injuries, which have had an ongoing effect, included a punctured lung, five cracked ribs on his right side and a fractured T5 vertebrae. Medical staff were surprised that his injuries were not more serious given the nature of the fall.

Charge: The company pleaded guilty to a charge under section 32 of the  Work Health and Safety Act 2011 (category 2 offence - failure to comply with a safety duty which exposes an individual to a risk of death or serious injury). Maximum penalty $1,500,000 for a corporation.

Plea: Guilty.

Penalty: $270,000.

Court: Magistrates Court of the ACT, Chief Magistrate Walker sitting as the Industrial Magistrate.

The Magistrate's reasons include:

"In relation to the risk of this particular work, there is no evidence before me as to why [the worker] wanted some help that morning. However, he clearly recognised that there was a need for some assistance. Given the weight of the panel, its location within the partially constructed building and the awkward position in which it had to be cut and the drop behind it, the risk of harm would have been evident" and should have been managed in accordance with the three stage risk management approach advised by the WorkSafe ACT guidance note in respect to the prevention of falls on construction sites.

"This case classically illustrates the fact that paperwork, without practical implementation by those on site is not enough to keep workers safe."

Regarding the injured worker's age and relative inexperience: "I am satisfied that there was a somewhat greater level of responsibility required of the employer to ensure his safety than might have been the case had the employer been dealing with a very experienced construction worker."

The Magistrate assessed the offence as "toward the mid-range of seriousness for an offence of this type". In determining the penalty, she took into account the fact that "the courts have made clear that a combination of the objective seriousness of the offence and the need for general deterrence are overriding factors in sentencing matters of this type."

Alan Chipperfield v Mashera Pty Ltd trading as Barlens Event Hire (19 August 2014), CC 40161 of 2014

Date of offence: 7-11 March 2012.

Date of decision: 19 August 2014.

In March 2012 several visitors to the Canberra Times Art Show were injured when the panels on which the artworks were displayed collapsed. The defendant was engaged to supply the panels and had subcontracted the work to erect the panels to Stafrad Constructions, an experienced contractor with whom they had an ongoing commercial relationship. The annual art show is usually held outside but bad weather meant a last minute change of venue to the Hyatt Hotel. The time pressures from the change of venue meant that the work of installing the panels was not finished until 2am on the morning of the art show. Limited instructions were given to the contractor before the work was done, and the work was not checked after he finished. An expert report later confirmed that cross panels were not installed, which meant that the panel walls were inherently unstable. Although it was not clear what caused the panels to fall, during the art show there was contact at some point and the panels collapsed like dominoes.

Charge: The company pleaded guilty to a charge under section 33 of the  Work Health and Safety Act 2011 (category 3 offence - failure to comply with a safety duty). Maximum penalty $500,000 for a corporation.

Plea: Guilty.

Penalty: $37,500.

Court: Magistrates Court of the ACT, Chief Magistrate Walker.

The Magistrate's reasons include: "Here there was significant reliance on an experienced contractor but a complete failure to apply any of its own usual checks or procedures. The remedy was simple; a brief, visual check by a qualified or experienced person would have readily identified the defect."

"Knowing that the contractor had worked into the early hours of the morning under pressure suggests to me that there was a greater need to check the work to ensure that there was no risk to safety as a result of those circumstances."

"In this context we are not looking at a common law issue of negligence where there might be proportionality or sharing of the blame. This is a non-delegable safety duty and the statutory regime in that respect is inherently different."

"General deterrence is significant because of the very broad public interest in influencing the actions of those who have a safety duty and in so doing, protecting workers and the public from harm which may follow from any breach, the risk of a future financial penalty is always significant to the corporate mind. Making the offender accountable for his or her actions, again, when talking about a corporate offender, money, it seems, talks."

The court said that the company was a good corporate citizen with safety systems in place at the time of the incident and extensive remedial work done afterwards. This type of offence was toward the lower end of the scale for an offence of its type.

Clare Brookes v Albert Bonansea and Ivana Bonansea (10 July 2014), CC 40404 of 2014

Date of offence: 2 May 2013.

Date of decision: 10 July 2014.

In May 2013 a husband and wife owner/builder team failed to arrange an asbestos assessment when renovation works were carried out on their family home. Some asbestos was found during the work and removed by a recognised asbestos removalist. However, more friable asbestos was found during the redevelopment and was not properly managed.

Charge: Both Mr and Mrs Bonansea pleaded guilty to charges under section 42 of the  Dangerous Substances Act 2004 (general offence - failure to comply with a safety duty). Maximum penalty $11,000 for an individual.

Plea: Guilty.

Penalty: Each defendant fined $1,650.

Court: Magistrates Court of the ACT, Chief Magistrate Walker.

The Magistrate's reasons include: "There was clear indication that whilst one would expect it, no consideration had been given to the extent of asbestos within the building. That is a reckless disregard which I find difficult to fathom given the general knowledge as to the danger of this substance in the community."

The Magistrate concluded that it was not appropriate to exercise her discretion not to record a conviction, one of those considerations being general deterrence: "there is a very real recognition of the need for compliance with what can, at times, be very complex obligations in respect to safety laws. They are there for the protection of the public and breach of those laws, whether reckless or intentional, potentially has a very significant effect in the community so general deterrence is an important factor."

Anthony Noakes v Stephen Fitzsimmons and Jeremy Grobben

Date of offence: 25 January 2011.

Date of decision: 1 July 2013.

The two defendants were partners and owners of the Delissio Brasserie restaurant in Braddon. Three cans of butane lighter gas, which were used to fuel a brulee torch, were stored on an open shelf directly beneath a pizza oven. On the night of the incident the cans exploded and engulfed the chef in flames. He sustained significant injuries. A waiter at the restaurant received minor injuries.

Charge: Both defendants pleaded guilty to charges under section 33 of  Work Safety Act 2008 (negligent failure to comply with a safety duty which causes serious harm), maximum penalty $165,000 and/or 3 years imprisonment for an individual.

Plea: Guilty.

Penalty: Each defendant fined $24,000.

Court: ACT Magistrate's Court, Chief Magistrate Walker.

The Magistrate's reasons include: [24-25] "While the notion of personal responsibility is recognised in the context of the tort of negligence, and perhaps increasingly so in recent years, the concept of duty of care in that context is somewhat different to that concept within the context of work safety legislation. The safety duty to an employee is absolute, that is provided for in section 33(2). The issue of failing to comply with the duty is a matter of strict liability. On reflection, whilst one would certainly hope that those in the workplace would exercise common sense, work safety laws are directed to the protection of all."

[46] "I am cognisant particularly of the need for general deterrence. A robust response from the courts is necessary to reinforce all in the workplace of their obligations to the safety of the workforce. Whilst there is no clear mathematical solution to the issue of breaches of work safety duties, a penalty is more likely to have a deterrent effect where the cost of failing to comply with one's work safety obligations is greater than the cost of compliance."

Magistrates Court Judgement

Anthony Noakes v SITA Australia Pty Ltd and Adecco Industrial Pty Ltd [2014] ACTIC 1 29 May 2014)

Date of offence: 13 January 2009.

Date of decision: 29 May 2014.

In January 2009 Geoffrey "Blackfella" Gowen was killed when he was crushed between the jib of a vehicle loading crane and the side of a truck. Mr Gowen was employed by the labour hire company Adecco Industrial Pty Ltd to work for SITA Australia Pty Ltd in its waste disposal business. He was working with another worker very early in the morning collecting waste bins from the rear of the Evatt shops. Mr Gowen started to operate the vehicle loading crane so as to pick up a bin but, largely because of his lack of experience and training, the crane jib extension moved downwards unexpectedly and he became trapped between the crane jib and the control panel on the side of the truck. An inquest into Mr Gowen's death is ongoing.

Charge: Both defendants pleaded guilty to charges under section 48 of the (now repealed) Occupational Health and Safety Act 1989 (negligent failure to comply with a safety duty under section 37 and 38 which exposed a person to serious harm).

Plea: Guilty.

Penalty: Each defendant fined the maximum available penalty of $5,000.

Court: Industrial Court of the ACT, Industrial Magistrate Walker.

The Magistrate's reasons include: Both the labour hire company and the host employer had duties to protect the worker's safety and they negligently failed to do so.

"General deterrence is a very significant factor in this type of offending. The courts have a role to play in setting the standard for work safety by ensuring that failures are appropriately punished where it is in their power to do so."

The $5,000 penalties were unusually low: the Magistrate noting that "as a result of the election made by the prosecution any penalty that I impose will be completely out of kilter with current sentencing practice."

The Magistrate heard a victim impact statement read to the court by Blackfella's daughter in law, which detailed the devastating effect upon the family of his loss.

Harsh Puri v K-Form Structural Systems Pty Ltd and others

Date of offence: 24 October 2008.

Date of decision: 10 February 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).

Timothy Cody v Scott Anthony Gibson

Date of offence: 30 August 2005.

Date of decision: 9 May 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).

Plea: Guilty.

Penalty: Convicted and fined $200 plus court costs of $55 and criminal injuries compensation of $50.

Court: ACT Magistrate's Court, Magistrate Cahill.

Arthur Reilly v Delta Pty Ltd

Date of offence: 17 January 2008.

Date of decision: 22 February 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).

Plea: Guilty.

Penalty: Convicted and fined $5,000 for each charge, a total of $10,000.

Court: ACT Magistrate's Court, Magistrate Campbell.

Timothy Cody v Tower Scaffolding (ACT) Pty Ltd

Date of offence: 30 August 2006.

Date of decision: 21 August 2009.

An employee of Tower Scaffolding was injured when he fell six 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 six 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.

Plea: Guilty.

Penalty: Convicted and fined $5,000 plus court costs of $55.

Court: ACT Magistrate's Court.

Territory Commercial Roofing Pty Ltd and Patrick Neville Skeers v Steven Hart [2007] ACTSC 119 (17 September 2009)

Date of offence: 5 March 2003.

Date of final decision: 17 September 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 (the Act)(duties of employers in relation to employees). Maximum penalty $125,000.

Patrick Skeers was charged with a breach of section 29 of the  Act (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 March 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."

Nexus Projects Pty Ltd

Date of offence: 4 June 2004.

Date of decision: 26 October 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 Heath 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.

Curran v AB Enterprises Pty Ltd [2007] CC06/41127

Date of offence: 7 December 2004.

Date of decision: 27 June 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 Heath 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.

Plea: Guilty.

Penalty: $35,000.

Court: ACT Magistrate's Court, Magistrate Fryar.

The Magistrate's reasons include: [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. As Ms De Veau stressed in her submission, 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.

Magistrates Court Judgement

Boral Building Services Pty Limited v Denis James Gazley [1997] ACTSC 68 (12 September 1997)

Date of offence: 5 April 1995

Date of final decision: 12 September 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 eight 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."

Supreme Court Judgement

McCracken v Johnsen [2003] ACTSC 74 (12 September 2003)

Date of offence: Between 20 April 1997 and 14 July 1997

Date of final decision: 12 September 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.

Plea: Guilty.

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]"Those 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. It was reasonable for her Worship to find in those circumstances, that 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."

Supreme Court Judgement

Metal Mart Pty Ltd

Date of offence: 7 January 2003.

Date of decision: 6 August 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.

Plea: Guilty.

Penalty: Total penalties (as outlined above) of $8,300 plus court costs of $159.

Court: ACT Magistrate's Court, Magistrate Dingwall.

Erindale M Pty Ltd v Mark Curran [2004] ACTSC 69 (20 August 2004)

Date of offence: 15 November 2002.

Date of final decision: 20 August 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.

Plea: Guilty.

Initial court decision and penalty: ACT Magistrate's Court, Magistrate Lalor, 8 April 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 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 [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.

"That conclusion, supported in Alcatel Australia Ltd (supra), seems to me entirely appropriate. 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.'"

Supreme Court Decision

Bruce Fuller v Waco Kwikform Pty Ltd and Michael Werahiko

Date of offence: Between 13 February 2004 and 23 February 2004.

Date of decisions: 8 April 2005 for Waco Kwikform Pty Ltd and 12 May 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 (the Act) (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 Act (persons in control of a workplace) (CC2005/40082).

The company was convicted and fined $2,000 plus court costs of $104.

Plea: Guilty.

Court: ACT Magistrate's Court, Magistrate Somes.

Steven Hart v Craig McFarland Murray and Mark Calvin Langbein

Date of offence: Between 23 April 2003 and 7 May 2003.

Date of decision: 19 December 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.

Plea: Guilty.

Penalty: Each convicted and fined $18,000.

Court: ACT Magistrate's Court, Magistrate Madden.

The Magistrate's reasons include: [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)."

Steven Hart v Legion Roofing South East Asia Pty Ltd

Date of offence: Between 12 April 2003 and 5 May 2003

Date of decision: 5 July 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 (the Act)(Duties of employers in relation to employees), a breach of section 28 of the Act (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.

Court: ACT Magistrate's Court, Magistrate Madden.

Steven Hart v John Livingstone

Date of offence: Between 12 April 2003 and 5 May 2003.

Date of decision: 5 July 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 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 and Safety (Certification of Plant Users and Operators) Regulation 2000 (operating an elevated work platform without a certificate of competency).

Plea: Guilty.

Penalty: Convicted and fined $200 plus court costs of $50 and criminal injuries compensation of $50.

Court: ACT Magistrate's Court, Magistrate Madden.

Steven Hart v Keith Spratt

Date of offence: Between 12 April 2003 and 5 May 2003.

Date of decision: 23 November 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 the Occupational Health and Safety Act 1989 (Duties of persons in control of a workplace) and a breach of section 25 of the Occupational Health and Safety (Certification of Plant Users and Operators) Regulation 2000 (operating an elevated work platform without a certificate of competency).

Plea: Guilty.

Penalty: Convicted and fined a total of $2,500.

Court: ACT Magistrate's Court, Magistrate Madden.

Steven Hart v Strarch International Ltd

Date of offence: Between 23 April 2003 and 7 May 2003.

Date of decision: 15 Febraury 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.

Plea: No plea entered, heard ex parte.

Penalty: Convicted and fined $93,750.

Court: ACT Magistrate's Court, Magistrate Madden.

The Magistrate's reasons include: "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."

Steven Hart v Spantech Pty Ltd

Date of offence: Between 20 March 2003 and 7 May 2003.

Date of decision: 12 April 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.

Plea: Guilty.

Penalty: Convicted and fined $10,500 plus court costs of $55.

Court: ACT Magistrate's Court, Magistrate Madden.

Steven Hart v Daryl John Ward

Date of offence: Between 12 April 2003 and 5 May 2003.

Date of decision: 12 April 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). 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).

Plea: Guilty.

Penalty: Convicted and fined $5,000 plus court costs of $55.

Court: ACT Magistrate's Court, Magistrate Madden.