Agius v JB Slab Pty Ltd
[2025] ACTMC 2
•21 February 2025
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Agius v JB Slab Pty Ltd |
Citation: | [2025] ACTMC 2 |
Hearing Date: | 17 December 2024 |
Decision Date: | 21 February 2025 |
Before: | Magistrate Lawton |
Decision: | See order [47] |
Catchwords: | INDUSTRIAL LAW – INDUSTRIAL SAFETY, HEALTH AND WELFARE – Judgement and Punishment – Sentence – General deterrence – Failing to comply with a health and safety duty – Exposure to risk of death or serious injury or illness |
Legislation Cited: | Work Health and Safety Act 2011, ss 3, 14, 16, 19, 32 Building Act 2004, s 42 Crimes (Sentencing) Act 2005, s 7 |
Cases Cited: | Nash v Silver City Drilling (NSW) [2017] NSWCCA 96 SafeWork NSW v Modco Homes [2024] NSWDC 656 Agius v Transport Canberra and City Services Directorate [2024] ACTMC 17 Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5 Grey v Agnew Building Supplies Pty Ltd [2023] ACTMC 13 Foster v Better Building Holdings Pty Ltd [2022] ACTIC 2 |
Parties: | Jacqueline Agius (Informant) JB Slab Pty Ltd (Defendant) |
Representation: | Counsel S Janackovic ( DPP) J Maher ( Defendant) |
| Solicitors ACT Director of Public Prosecutions Legal on London ( Defendant) | |
File Number: | CAN 41055/2024 |
MAGISTRATE LAWTON:
The defendant, JB Slab Pty Ltd, pleaded guilty on 17 December 2024 to an offence of failing to comply with a health and safety duty pursuant to s 32 of the Work Health and Safety Act 2011 (‘WHS Act’). This is a category 2 offence arising from an incident in Taylor in the Australian Capital Territory on 24 May 2022.
The maximum penalty for a category 2 offence when committed by a body corporate is $1,500,000.
The defendant’s business involved carrying out specialist concreting works including the construction of formwork, and the pouring and installing of concrete slabs, walls, driveways and footpaths. The defendant’s sole director was Mr Jasvir Singh.
The defendant is a person conducting a business or undertaking (“PCBU”). The defendant relevantly has a duty to ensure the provision and the maintenance of a work environment without risks to health and safety and safe systems of work as well as adequate information, training and instruction to its workers.
The defendant was engaged to carry out works at a residential construction site in Taylor. Both Mr Atinderpal Singh and Mr Manpreet Sidhu were engaged to undertake work on the site.
Between 12 May 2022 and 24 May 2022, Rediwall panels had been constructed on the site in an ad-hoc manner. A bracing technique was used to affix the timber walers to the top section of the Rediwall, affix timber plates to the cured concrete slab and affix timber members between the timber waler and timber plate at an angle. Some of these pieces of timber were screwed together. Some of the timber pieces had been used multiple times beforehand.
On 23 May 2022, a certifier had taken photographs of the site and completed a Building Inspector Record where it was indicated that the building work complied with s 42 of the Building Act 2004. The record also indicated that it was ‘OK to pour concrete and proceed with work’.
The defendant undertook further work on the Rediwall. However, the final bracing arrangements for the Rediwall were inconsistent with the manufacturer’s recommendations.
On 24 May 2022, Mr A Singh and Mr Sidhu commenced work on the site with Mr Jasvir Singh arriving later in the day. On this date, the workers were tasked to pour wet concrete into the Rediwall panels.
10.The defendant had placed an order for Dincel Mix concrete to be delivered to the site, and two concrete trucks to deliver the concrete to the site. Once the first concrete truck arrived, the wet concrete mix was unloaded into the concrete pump. One person was operating the pump whilst Mr A Singh used the hose to pour the concrete into the Rediwall panels. Mr Jasvir Singh and Mr Sidhu assisted with this process.
11.The second load of concrete was delivered later that day, and the concrete mix was unloaded into the concrete pump. Towards the end of this process, the concrete pump operator beeped the concrete truck horn to indicate that the transfer of concrete from the truck to the pump should stop.
12.The western Rediwall had begun to bow. Mr Sidhu was standing on the outside of the Rediwall when it begun to collapse onto a natural embankment with him becoming trapped between the collapsed wall and the embankment.
13.Attempts were made to free Mr Sidhu by picking up the collapsed wall however it was too heavy to lift. Mr Paul Santos was working up the road and heard screaming which prompted him to drive his bobcat to the site where he began shifting the soil and lifting the wall. Another person on site used a concrete cutter to cut the wall and the steel reinforcement bars. Mr Sidhu was eventually freed. WorkSafe was notified of the incident.
14.Mr Sidhu saw a medical practitioner the following day, complaining of pain for which he was prescribed pain medication. Mr Sidhu attended a medical practitioner on subsequent occasions where he complained of neck and back pain for which he was prescribed pain medication.
15.Furthermore, Mr Sidhu saw a consultant orthopaedic surgeon in January 2023. Mr Sidhu’s medical history and various scans led the consultant orthopaedic surgeon to form an opinion that Mr Sidhu had likely sustained contusions to his back, however, his cervical and lumbar spondylosis was age-related and degenerative, and therefore was not materially contributed to by the incident.
16.The subsequent WorkSafe investigation revealed a range of issues at the site.
17.A structural engineer also completed an inspection of the site. The structural engineers report observed that there were no fixings between the timber walers and panel joints; no connection at the corner between the back Rediwall and the collapsed Rediwall; some panels were unrestrained; reused timber had been used with the spacing between screws and previous screws being less than recommended by the Timber Design Code; some sections of the timber were splitting; some timber props were comprised of two separate timber members screwed together; failed fixing connections between timber members were evident and these presented as localised tears out of screws from the timbers.
18.These findings indicated an “over-stressed condition being subjected to the bracing”.
19.The temporary bracing did not meet the minimum requirements set out by Rediwall nor Dincel, as the correct braces were not used at the site.
20.It was opined by the structural engineer that an unexpected lateral force (such as an unexpected movement from the concrete pump or activities from tradesman during concrete placement) would likely result in the collapse of the wall as the temporary bracing was unable to prevent the overturning of the wall.
21.It is reasonable to expect that had the Rediwall been equipped with appropriate bracing, it would have remained stable notwithstanding unexpected construction type activities.
Failures of the Defendant
22.The defendant had a primary duty of care to ensure, so far was reasonably practicable, the health and safety of the workers engaged by the defendant and of workers whose activities in undertaking the work were influenced or directed by the defendant whilst the workers were at work in the business or undertaking, pursuant to s 19(1)(a) of the WHS Act.
23.This included ensuring, so far as was reasonably practicable, the provision and maintenance of a safe work environment free from risks to health and safety, and of safe systems of work, and the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks arising from the workplace.
24.Firstly, the work environment was inherently unsafe as the defendant had failed to implement and enforce Safe Work Method Statement (“SWMS”) identifying the risk of formwork collapse and the control measures to mitigate this risk. The defendant’s SWMS titled “Concrete Slab Construction” was silent on formwork collapse. As explored earlier, the formwork was not braced in accordance with the manufacturer’s recommendations. Further, the defendant had failed to provide appropriate materials to brace the Rediwall. The defendant was required to use competent and qualified workers to brace the formwork, however, a worker who had never completed a wall formwork course had braced the Rediwall.
25.In terms of the provision of training, the defendant did not ensure the workers had completed the relevant training. It was Mr Sidhu’s first day at work for the company, however, he had not yet completed the General Construction Induction training. Mr Sidhu and Mr A Singh had both not been inducted to a SWMS which identified the risk of formwork collapse. The defendant did not conduct any safety meetings, or other safety discussions, other than providing informal instructions to workers. The defendant’s informal instructions to Mr A Singh were poor in relation to bracing techniques given that he had limited experience in formwork construction, nor had he completed any relevant training.
Objective Factors
26.The penalty imposed must be one which serves the overall purpose of the WHS Act. The purpose of the WHS Act is to ensure the safety, health, and welfare of workers and others on worksite premises. Additionally, s 3 of the WHS Act provides that workers should be afforded the highest level of protection from harms to their health, safety, and welfare from hazards and risks which may arise at work.
27.I must consider principles of sentencing as set out in s 7 of the Crimes (Sentencing) Act 2005. With regard to these sentencing principles and those set out in s 3 of the WHS Act, it is evident that the sentence I impose must reflect the principles of both general and specific deterrence. All employers must ensure a safe workplace for their workers.
28.In Nash v Silver City Drilling (NSW) [2017] NSWCCA 96 at [53] Basten JA provides that the risk to be assessed is not the risk of consequence to the extent that a worker is in fact injured, but rather the risk which arises from the failure to take reasonably practicable steps to avoid the injury from occurring. His Honour stated “the conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, regardless of whether they are likely to materialise”.
29.The fact that an injury has occurred does not necessarily mean that the seriousness of the breach should be assessed in that context.
30.Rather, the occurrence of any accident resulting in death or injury of a particular kind, may inform an assessment of both the existence of the risk as well as the nature and seriousness of the risk.
31.The objective seriousness of a risk will also be assessed where there is an obvious and foreseeable risk to health and safety where appropriate measures were not taken despite being available and feasible.
32.In SafeWork NSW v Modco Homes [2024] NSWDC 656 at [49] Strathdee DCJ helpfully sets out a summary of the factors to be considered in respect to the objective seriousness of the offence, which I will now detail.
(a)The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where potential injuries are severe regardless of whether they are likely to materialise.
(b)The availability of steps to minimise or eliminate the risk.
(c)Whether those steps are complex, burdensome, or mildly inconvenient. If mitigating steps could have easily been taken, the offending will be more serious.
(d)Whether the risk was known or ought reasonably to have been known or identified by the offender.
(e)Whether the risk was an obvious or clear one.
(f)The vulnerability of workers exposed to the risk.
33.As I have previously noted in Agius v Transport Canberra and City Services Directorate [2024] ACTMC 17 at [24], Smithers v Capitol Chilled Foods (Australia) Pty Ltd [2023] ACTMC 5 at [17] and Grey v Agnew Building Supplies Pty Ltd [2023] ACTMC 13 at [20], how and why the failure occurred is relevant to sentencing as in assessing the defendants culpability it is relevant to know why the failure came to be, whether that be as a result of a failure to abide by systems in place by management or a failure of management to establish and implement adequate safety systems and procedures in the first place.
34.I make the following findings as to the seriousness of risk.
35.The risk of the worker being seriously injured or killed as a result of a collapsed wall resulting from improper construction was high. The gravity of the risk was significant as there was potential for serious injury or fatality.
36.Taking appropriate measures to avoid any risk would not have entailed significant burden or cost. The system and method for which the wall was constructed was ad-hoc and contrary to the manufacturer’s requirements and recommendations. The Rediwall could have been easily constructed properly as the requirements were not complex, burdensome nor mildly inconvenient. The SWMS was absent in regard to formwork collapse. Proper training was not provided to the workers. Implementing updated procedures and training which included reference to these risks would not have been complicated or expensive. Mitigating steps could have easily been taken, which makes the offending more serious.
37.Although the certifier approved further work on the site, the defendant’s moral culpability and responsibility should not be reduced because of the certifier’s actions. The certifier approved the pouring of the concrete on the site notwithstanding the state of the defendant’s formwork. This was evidently a substandard approval, however, does not absolve the defendant of its duty to ensure the health and safety of its workers.
38.Ultimately, with regard to ss 14 and 16 of the WHS Act, the defendant is unable to transfer its duty to another entity. The defendant had to comply with its duty of the standard required by the WHS Act regardless of whether another entity held a work health and safety duty at the same time.
39.It was noted by Chief Magistrate Walker in Foster v Better Building Holdings Pty Ltd [2022] ACTIC 2 at [30] that shared culpability does not result in some form of apportionment but rather is relevant only in considering the culpability of the defendant in relation to the facts of a particular case.
40.It appears to me that the risks of the improper construction of the Rediwall as a result of the lack of adequate training was apparent. This is apparent from the construction not complying with the manufacturer’s construction requirements.
41.With regard to the relevant principles, the extent of the duty owed was significant and the extent of the risk of health and safety was also significant, as demonstrated by the injuries to Mr Sidhu. The likelihood of a risk of particular harm eventuating was high. The risk was a consequence of the failure of the defendant to implement safe work methods, provide appropriate materials to brace the Rediwall, to use competent and qualified workers to brace the Rediwall and to provide adequate training to the workers.
42.Accordingly, the objective gravity of the seriousness of the breach is high. I consider the starting point for the penalty to be imposed to be $300,000.
Subjective Factors
43.I now turn to the subjective factors of the defendant. The defendant comes before the Court with no antecedents relating to work health and safety breaches. I note that I am sentencing the corporate entity and the prior criminal history of its director, Mr Jasvir Singh, is not relevant in my view.
44.The defendant entered the plea of guilty at the fifth mention. It is agreed between the Parties that the defendant should be entitled to a full 25% discount for its plea.
45.There has been a demonstration of remorse by the defendant as provided in Mr Jasvir Singh’s letter to the Court. The defendant has also taken steps to ensure that this risk has been eliminated in the future by undertaking the appropriate training and other occupational work and safety courses. This particular work is now outsourced by the defendant to a sub-contractor who is better qualified to undertake this particular work.
46.Where the defendant has indicated a plea of guilty at an early stage, there is an indication of both remorse and contrition and a full acceptance of responsibility. The defendant has taken considerable steps to ensure that the risk is eliminated in the future. In these circumstances, I am prepared to afford the maximum discount of 25% to the defendant.
Orders
47.The defendant is convicted and fined $225,000.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Magistrate Lawton Associate: Pia Beohm Date: 21 February 2025 |
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