Director of Public Prosecutions v ABD Group Pty Ltd

[2016] VCC 1450

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01957

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABD GROUP PTY LTD

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2016
DATE OF SENTENCE:	29 September 2016
CASE MAY BE CITED AS:	DPP v ABD Group Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 1450

REASONS FOR SENTENCE
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Subject:Trial - sentencing

Catchwords:             Failure of person who has management or control to ensure a workplace is safe and without risk to health

Legislation Cited:     Occupational Health and Safety Act 2004

Cases Cited:DPP v Frewstal Pty Ltd [2015] VSCA 266

Sentence:                 With conviction, fined $80,000

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Mr D. Gurvich Q.C.      with Ms E. Holt Ms E. Holt	Office of Public Prosecutions
For the Accused at hearing For the Accused at hearing	Mr R. Taylor      with Mr R. O’Neill Mr R. O'Neill	Minter Ellison

Pages 1 - 6

 

 

HIS HONOUR: 

1On 27 April this year after an 11-day trial, the ABD Group Pty Ltd was found guilty by a jury verdict of one charge of failure of person who has management or control to ensure a workplace is safe and without risk to health, contrary to s.26(1) of the Occupational Health and Safety Act 2004.

2The maximum penalty for this offence for a body corporate is 9,000 penalty units.  At the rate relevant to the time of the offending this means a maximum penalty of $1,075,050.

3The ABD Group Pty Ltd is a construction company which in May 2011 was the principal contractor undertaking a project called ‘Berkley Square’ at 10 Berkley Street in Doncaster.  The project comprised two multilevel apartment buildings.  Stage 1 consisted of 49 apartments and parking over seven levels (“the workplace”).

4On 20 March 2011, ABD Group entered into a subcontracting agreement with Team Commercial Constructions Pty Ltd (“TCC”) to complete carpentry works at the workplace, including framing, lockup, fixing internal architraves, skirting, doors and external cladding.

5On 9 May 2011 workers from TCC were on Level 7 installing particle flooring to floor joists.  One of those workers, Jason Scollo, was using a circular saw to trim a 300mm excess of flooring that was overhanging a stairwell void.  He had cut through part of the overhanging flooring when the power cord to the saw pulled out of its extension cord.  The end of the extension cord hung down into the stairwell void and Mr Scollo moved across to get it.

6Whilst doing so he slipped on sawdust and the remaining overhanging part of the particle board broke off, causing him to fall 2.8 metres to the concrete floor below.  The void had no guard rail perimeter or cover.     

7Mr Scollo landed on the right side of his body, without hitting his head.  He suffered some internal bruising and no broken bones.  His right arm was in a sling for two days and he was off work for two weeks.

8WorkSafe inspector Steven Thornley attended the site on 10 May 2011, the day after the incident.  He did not issue any improvement notices as voluntary compliance was already underway: ABD Group had conducted an incident investigation and works had ceased until the new control measures were implemented.

9TCC’s Safe Work Method Statement (“SWMS”) for Floor Laying had been provided to ABD and reviewed on 1 March 2011.  The SWMS had a High Risk rating for Installation of Flooring and control measures included “Perimeter areas to be guard railed” and “All penetrations will be securely covered and trimmed out at a later date”.

10Following the incident, TCC's SWMS was reviewed and revised.  The additional control measures implemented were the installation of additional joists and sheet flooring over all stairwell voids and that works be conducted from a scaffold until full protection measures were installed.  When the stairwell voids were to be exposed, the flooring was only to be cut from behind an installed system of guard railing.

11The guilty verdict by the jury is a finding that ABD Group failed to comply with its duties under the Occupational Health and Safety Act 2004 as alleged in the charge and particulars on the indictment. Specifically, ABD Group failed to ensure, so far as was reasonably practicable, that the workplace was safe and without risks to health when it:

·    failed to install stairwell void protection prior to the commencement of any work being performed within two metres of the stairwell void; or

·    failed to ensure that stairwell void protection was installed by TCC prior to the commencement of any work being performed within two metres of the stairwell void.

12The prosecution case further particularised the breach as failing to ensure, as far as was reasonably practicable, that stairwell void protection was installed by TCC prior to the commencement of any work being performed within two metres of the stairwell void by:

Particular 2:     (a) conducting Site Safety Inspections and weekly Site Safety Walks in accordance with the ABD Health, Safety and Environmental Management System; and

(b) directing TCC to install void protection in accordance with the TCC Floor Laying Safe Work Method Statement.

13On the prosecution case and following directions to the jury, the jury can be taken to have been satisfied beyond reasonable doubt that either one or other or both of Site Safety Inspections and weekly Site Safety Walks were not done and the direction under (b) above was not done. 

14It was not in issue that ABD had to any extent management and control of the workplace as alleged. 

15In sentencing, I accept that the principles of sentencing applicable in the circumstances of this case are as set out by the parties in their respective written sentencing submissions.  In summary, they include the following: 

·    the maximum penalty for the offence;

·    that the requirement of reasonable practicality requires that risks are eliminated as far as reasonably practicable and if it is not possible to eliminate risks, then to reduce them as far as is reasonably practicable;

·    in determining what is reasonably practicable the court is required to have regard to the matters set out in s.20(2) of the Act;

·    the objective seriousness of the breach;

·    that where the potential risks include the possibility that a person could be seriously injured or die, general deterrence will normally assume considerable significance;

·    that the offence is risk-based not outcome-based: that is, punishment is considered and applied according to the gravity of the breach of duty not according to the consequences of the breach;

·    Mr Taylor and Mr O'Neill placed a particular emphasis on the decision of DPP v Frewstal Pty Ltd [2015] VSCA 266 and I have applied those principles.

16In applying those principles to the circumstances of the present case, I am satisfied that:

·    the objective seriousness of the breach is significant.  The risks associated with working at height are self-evident and notorious.  I accept that the risk included the risk of death.  The offence is concerned with risk to health and the sentencing court is not constrained in considering the full risks of the breach.  Whether the risk to health was constrained to include only a risk of serious injury short of risk of death was never an issue in the trial.  In my view, the risk of a fall from a height of 2.8 metres onto a concrete surface below objectively carries with it the risk of a serious impact to the head and the possibility of consequent death.  It is not speculation that this could have occurred in a given circumstance, it is a risk, an exposure to chance.  The courts not infrequently deal with such outcomes from falls from lesser heights.  The exposure of the victim to such a serious risk is a measure of the company's culpability.  Nonetheless, the injuries actually suffered may be used to assess the seriousness of the risk. 

·    general deterrence assumes considerable significance and specific deterrence, whilst well moderated because of the mitigating circumstances, is not entirely eliminated. 

·    the company knew about the existence of the stairwell void and the need for void protection. 

·    the company's HESM plan provided ways to eliminate or reduce the risk which could have been achieved if the control measures had been properly applied.  The gravamen of the offending was not the failure of the company to have appropriate health and safety procedures in place, but the failure to have ensured proper compliance with the procedure by the necessary inspections and subsequent directions.

17In mitigation, I take into account the matters submitted by counsel for
ABD Group and in particular:

·    the previous good record of corporate responsibility and the absence of any previous breaches of regulatory safety requirements; 

·    the above good record being in the context of many years of significant multiple construction projects;

·    the comprehensive system of health and safety procedures existing at the time of the incident;

·    the analysis for potential causes of the breach of the pre-existing safety system and the measures taken by the company following the incident to improve the facilitation of the safety system.  This includes the provision of clearer documentation and frequency of inspection procedures designed to identify risks, the specific further requirement to barricade voids, the process of accreditation with ISO 9001 and the creation of fulltime, on-site CFMEU-trained health and safety representatives employed by the company.

18Also, I take into account the good corporate citizenship demonstrated by the company's philanthropic acts in the community.

19I have been assisted also in the determination of current sentencing practices from the authorities provided by the parties on the plea.  I have read and considered the authorities.  The overwhelming majority of these cases involved defendants who pleaded guilty and thus were entitled to considerations of remorse in that context.  This is not open to the company in this case.

20I do accept, however, that it cannot be said that the company faced an overwhelming prosecution case or that there was not a justifiable forensic defence to argue.  The comprehensive response of the company following the incident in my view carries with it also some remorse.  I have taken into account the range of penalties of the various fall cases in 2015 and 2016 provided after Tab 5 of the prosecution sentencing submissions.

21On Charge 1 of failure of a person who has management or control to ensure a workplace is safe and without risks to health, contrary to s.26(1) of the Occupational Health and Safety Act 2004, the company is convicted and fined $80,000.

22Are there any other matters from either counsel?

23MR O'NEILL:  If it please the court, could I request a three-month stay on payment of the fine?

24HIS HONOUR:  Any objection to that?

25MS HOLT:  No objection, Your Honour.

26HIS HONOUR:  All right, thank you.  I further direct a stay of three months on the payment of the fine.

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