Dura (Australia) Constructions Pty Ltd v Girgin - [2002] VSC 449

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5797 of 2002

DURA (AUSTRALIA) CONSTRUCTIONS PTY LTD	Appellant
v
RASIT GIRGIN	Respondent

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JUDGE:	BALMFORD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2002
DATE OF JUDGMENT:	23 October 2002
CASE MAY BE CITED AS:	Dura (Australia) Constructions v Girgin
MEDIUM NEUTRAL CITATION:	[2002] VSC 449

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OCCUPATIONAL HEALTH AND SAFETY – appeal from the Magistrates’ Court – sufficient evidence for the Magistrate to come to the conclusion to which he did come – sufficiency of reasoning – interpretation of section 21(2)(e) of the Occupation Health and Safety Act 1985 – appeal dismissed

Occupational Health and Safety Act 1985 – sections 4, 21(2)(c), 21(2)(e)
Magistrates’ Court Act 1989 – section 92

Brittingham v Williams [1932] VLR 237
Holmes v RE Spence & Co (1992) 5 VIR 119
Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639
Peteitt v Dunkley [1971] 1 NSWLR 376
R v Australian Char Pty Ltd [1999] 3 VR 834
Soulemezis v Dudley (Holdings) P/L [1987] 10 NSWLR 247
Spurling v Development Underwriting Inc [1973] VR 1

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.H. Whitten	Noble Lawyers
For the Respondent	Mr M. Rozenes with Mr K.T. Armstrong	Fiona Thompson, Worksafe Victoria

HER HONOUR:

Introduction

This is an appeal under section 92 of the Magistrates’ Court Act 1989 (“the Magistrates’ Court Act”) from a final order made on 7 May 2002 in the Magistrates’ Court at Heidelberg, sitting at Moonee Ponds, constituted by Mr Cashmore, Magistrate, whereby the appellant (“Dura”) was convicted of offences against sections 21(2)(c) and 21(2)(e) of the Occupational Health and Safety Act 1985 (“the Act”), and fined $25,000 with $17,000 costs.

On 30 May 2002 Master Wheeler stayed those orders until the determination of this appeal, and ordered the following questions of law to be decided:

(a)Having regard to the whole of the evidence could a reasonable Magistrate properly instructed have found beyond reasonable doubt that the appellant was guilty of the offences charged, and in particular did he err in rejecting the evidence that there was a scaffold barricade with bunting tape on the walkway?
(b)Did the Magistrate give sufficient reasons for his decision and in particular as to why he rejected the evidence of the respondents (prosecution) witnesses Caruan, Doggert and Medina and [sic] that they knew of the hazard?
(c)Did the Magistrate err in law when he failed to find that the warning given by Christofi to the injured worker Dovigi did not constitute a sufficient instruction for the purposes of section 21(2)(e) of [the Act]?
(d)Did the Magistrate err in law when he found that the actual state of knowledge of an employee was not relevant for determining whether that employee had received sufficient training or instruction so as to enable that employee to carry out his work in a manner that is safe?

On 26 August 1999 Mr Dovigi, an employee of Dura, while performing construction work at Genazzano College…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] VSC 449
Decision Date: 23 October 2002

CaseChat Overview and Summary

Dura (Australia) Constructions Pty Ltd sought to appeal a decision of the Magistrates' Court of Victoria, which found the company guilty of contravening the Occupational Health and Safety Act 1985. The issue arose from the company's failure to provide adequate training to its employees, which resulted in injuries to a worker. The Magistrates' Court concluded that the company was liable under section 21(2)(e) of the Act, and the company appealed the decision to the County Court of Victoria.

The legal issue before the court was whether the Magistrates' Court had sufficient evidence to find Dura guilty of the offence under section 21(2)(e) of the Occupational Health and Safety Act 1985. The court had to consider whether the evidence was sufficient to support the Magistrate's conclusion and whether the reasoning provided was adequate. The court also had to consider the interpretation of section 21(2)(e) and whether it was applicable to the facts of the case.

In dismissing the appeal, the court found that the Magistrate had provided sufficient evidence and reasoning to support the decision. The court held that the evidence was sufficient to support the conclusion that the company had failed to provide adequate training to its employees, which resulted in injuries to a worker. The court also held that the interpretation of section 21(2)(e) was correct and applicable to the facts of the case. The court found that the company's appeal was without merit and dismissed it.

The court did not make any orders, as the appeal was dismissed. The decision of the Magistrates' Court stood, and the company remained liable for the contravention of the Occupational Health and Safety Act 1985. The case serves as a reminder to employers to ensure that they provide adequate training to their employees to prevent injuries and comply with occupational health and safety regulations.

Orders