Introduction

The end of 2018 saw a flurry of officer prosecutions finalised in New South Wales (NSW) and Victoria, including the first recorded sentence of imprisonment for reckless endangerment in Victoria. The cases illustrate an increasing willingness on the part of SafeWork NSW and WorkSafe Victoria to pursue company officers personally for work health and safety breaches, particularly sole directors and hands-on officers who are working in the construction industry.

The cases summarised below, several of which bear striking factual similarities, are valuable reminders of:

  • the overarching obligation on company officers to exercise due diligence in order to ensure that the company discharges its work health and safety obligations;
  • the importance of directors of small businesses understanding and abiding by the codes of practice that apply to their industry;
  • the need to appropriately instruct and supervise workers, particularly those with a limited understanding of English;
  • the catastrophic consequences of failing to control the risks of working at height; and
  • the importance of officers properly presenting evidence of their ability to pay fines in sentencing submissions.

Court finds risk of falling from height obvious

In SafeWork NSW v Opcon, Housam Annous, the sole director of a small family plumbing business (Opcon) was prosecuted for failing to exercise due diligence as an officer, which exposed a worker to the risk of death or serious injury.(1)

Opcon was engaged to perform plumbing work on the roof of a building. To protect against the risk of falls Opcon's workers used elevated work platforms to access the roof and wore fall arrest harnesses when working. However, during this work, a worker fell through the roof and sustained fatal injuries. It was later determined that the worker had not been wearing his fall-arrest harness.

The court found that although Annous and Opcon had foreseen the need to protect workers – including the use of harnesses – they had failed to ensure that the worker was wearing his harness. The court also found that the risk of falling from height was obvious and the loss caused by the offence was substantial. Neither Annous nor Opcon had any prior convictions and Annous had shown considerable remorse. In accepting the company and Annous's modest financial positions and pleas of guilt, the court fined Annous A$7,500 and Opcon A$75,000.

Court finds no safe work method statement

In SafeWork NSW v Meixing Jiang (another serious fall from height incident), Meixing Jiang, the sole director of bricklaying company Yaofu was prosecuted for failing to exercise due diligence as an officer contrary to the NSW Work Health and Safety Act.(2)

Yaofu was engaged to lay bricks at a multi-storey apartment complex. A three-storey high ventilation shaft ran through the middle of the complex and the opening to this shaft had been covered by unsecured steel sheeting. Jiang directed two of his workers, both of whom had a limited understanding of English, to lay bricks near the shaft opening, unaware of the danger that it posed. One of the workers stepped onto the sheeting and fell three storeys down the shaft and sustained serious injuries.

The court found that Yaofu did not have a safe work method statement for the work being performed and that the code of practice for 'managing the risk of falls at the workplace' had not been followed. Yaofu went into liquidation in September 2017. At his plea hearing, Jiang did not present evidence to establish that his fine should be reduced because of personal financial hardship. Due to the seriousness of the offence, the court convicted Jiang and ordered him to pay a fine of A$22,500.

Court finds employer inadequately supervised

Similar circumstances to the above resulted in the prosecution in SafeWork NSW v Grandcity Constructions P/L.(3) In this case, Cailin Cai, a builder with 10 years' experience, was also a director of Grandcity Constructions, which had been engaged to build a multi-storey residence in Strathfield. Mr Wang was engaged as a cleaner at the construction site. Wang had limited English and did not hold a general construction induction card (white card).

Wang sustained serious injuries when he fell three metres from an unprotected edge at the worksite. The safe work method statement for the work did not reference edge protection, contrary to the code of practice for managing the risk of falls at workplaces.

The court found that Wang had been inadequately supervised and that the risk of falls at the worksite had been obvious. Despite the obvious risk and the considerable guidance material available to Grandcity, no edge protection had been put in place. Grandcity was thus fined A$120,000 and Cai was fined A$24,000.

Court finds hazardous manual task code not followed

In SafeWork NSW v Shaun Mehan, Shaun Mehan, the sole director of air conditioning company SMAC, pleaded guilty to failing to exercise due diligence and accepted that he had failed to abide by the NSW hazardous manual tasks code of practice.(4)

One of SMAC's apprentices sustained leg injuries when he was struck by a 525kg air conditioning unit that he had been moving down a stairwell.

The court found that Mehan had failed to exercise due diligence to ensure that SMAC complied with its duty under the Work Health and Safety Act – specifically that SMAC had not followed the hazardous manual task code, which advocated for the use of mechanical devices and team lifting practices, either of which would have reduced the risk of an incident of this type occurring.

In sentencing Mehan, the court considered:

  • his genuine remorse;
  • that he was now unemployed; and
  • that SMAC had gone into liquidation after the incident.

The court convicted Mehan and ordered him to pay a significantly reduced fine of A$7,500.

Court finds no attempt to secure bin to forklift tines which results in death

In a landmark decision for WorkSafe Victoria, Maria Jackson – a 72-year-old owner of a scrap metal business in Foster – was sentenced to six months in jail as a result of a fatal incident at her workplace.

In February 2017 a worker fell from a metal bin that had been raised three metres off the ground on the tines of a forklift being operated by Jackson. Tragically, the employee was struck and killed by the bin, which also fell from the tines. Jackson was not licensed to operate forklifts.

Further, it was found that no attempt had been made to secure the bin to the tines of the forklift. The LaTrobe Valley Magistrates Court fined Jackson A$10,000 for breaching her duty as a self-employed person contrary to Section 24 of the Occupational Health and Safety Act and sentenced her to six months imprisonment for recklessly endangering a person at a workplace (the first such sentence ever imposed under this act). Jackson has appealed against the sentence.

Court heard no passive fall prevention measures in place

The construction company J Avenell Constructions Pty Ltd and its sole director Joshua Avenell, were convicted and fined A$10,000 and A$20,000 respectively relating to breaches of Sections 21 and 144 of the Occupational Health and Safety Act. In yet another example of a serious fall from height, an apprentice carpenter sustained fractures to his back when he fell from a construction site in Box Hill. The Ringwood Magistrates Court heard that there were no passive fall prevention measures in place, which attributed to Avenell's failure to take reasonable care as a director.

Excavation collapses shortly after completion

In the Victorian Court of Appeal, a director and construction company successfully appealed the fines imposed on them by the county court for Occupational Health and Safety Act offences in Di Tonto v R.(5)

Aldo Di Tonto was the sole director of AM Design and Construction Pty Ltd, which had been engaged in a structural engineering capacity for a development in Mount Waverley. Di Tonto had prepared structural design drawings for the basement excavation of the development without any of the site retention measures required to prevent the excavation from collapsing.

The excavation collapsed shortly after its completion and the residents of houses adjoining the site were forced to evacuate. Di Tonto and AM Constructions subsequently pleaded guilty in the county court to breaches of Sections 144 and 23 of the Occupational Health and Safety Act and were fined A$100,000 and A$380,000, respectively.

These sentences were appealed on the basis that they were manifestly excessive. The Court of Appeal agreed and found that the fines imposed were wholly outside the range open to the county court. In halving the fines to A$50,000 and A$190,000, respectively, the Victorian Court of Appeal noted that the original fines were disproportionate to the financial circumstances of the appellants who were, in effect, one in the same.

For further information on this topic please contact Cameron Hannebery at Lander & Rogers by telephone (+61 3 9269 9000) or email (channebery@landers.com.au). The Lander & Rogers website can be accessed at www.landers.com.au.

Endnotes

(1) 2018, NSWDC 350.

(2) 2018, NSWDC 400.

(3) 2018, NSWDC 398.

(4) 2018, NSWDC391.

(5) 2018, VSCA 312.

For further information on this topic please contact Donna M ParisiGeoffrey B Goldman or Azam H Aziz at Shearman & Sterling LLP by telephone (+1 212 848 4000) or email (dparisi@shearman.comgeoffrey.goldman@shearman.com or aaziz@shearman.com). The Shearman & Sterling LLP website can be accessed at www.shearman.com.