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Guilfoyle v Culverthorpe Pty Ltd

Guilfoyle v Culverthorpe Pty Ltd

Case [2019] QMC 17 4 October 2019

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MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Guilfoyle v Culverthorpe Pty Ltd [2019] QMC 17

PARTIES:

Aaron John Guilfoyle

(Complainant)

v

Culverthorpe Pty Ltd

(Defendant)

FILE NO/S:

MAG-00070115/19

DIVISION:

Magistrates Courts

PROCEEDING:

Criminal

ORIGINATING COURT:

Toowoomba

DELIVERED ON:

4 October 2019

DELIVERED AT:

Toowoomba

HEARING DATE:

13 September 2019

MAGISTRATE:

G Lee

ORDER:

Convicted and fined $75,000 refer to SPER. I order the defendant to pay professional costs of $1,500 and $97.95.

CATCHWORDS:

Criminal Law – Work Health and Safety – defendant pleaded guilty to an offence of failing to comply with a health and safety duty under section 32 of the Work Health and Safety Act – excavation of 3.6 metre deep trench on a farm for laying of large pipes – high risk construction work – employee of defendant working in the trench – employee trapped from waist down as side of trench collapsed – suffered serious injuries – risk of workers suffering from serious injury as a result of collapse of trench walls – sentence

Work Health and Safety Act 2011, ss 3, 17, 18, 19, 26A, 32, 275

Penalties and Sentences Act 1992, ss 9, 11, 12, 13 & 48

Work Health and Safety Regulations 2011, ss 289, 291, 297

Code of Practice 2013, Excavation Work

The following cases were cited:

Hitchcock v Simon Contractors Pty Ltd, (unreported), Magistrate decision 22 May 2017 (MAG00278248/16)

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

R v Goodwin; ex parte Attorney General [2014] QCA 345

Reynolds v Orara Packaging Australia Pty Ltd [2019] QDC 31

Reynolds v Tailored Adventures Pty Ltd [2019] QDC 150

Richardson v Ollis Construction Pty Ltd [2019] QMC 5

Safework NSW v Bustin Free Earthworks Pty Ltd [2017] NSWDC 9

Steward v Mac Plant Pty Ltd & Mac Farms Pty Ltd [2018] QDC 20

Williamson v APD Services, (unreported), Magistrate decision 12 January 2017 (MAG 00115079/16)

Williamson v VH & MG Imports Pty Ltd [2017] QDC 56.

COUNSEL:

Ms R Lloyd for the complainant

Ms L Willson for the defendant

SOLICITORS:

Office of the Work Health and Safety Prosecutor

McNamara & Associates, Solicitors for the defendant

On 13 September 2019 Culverthorpe Pty Ltd (defendant) pleaded guilty to an offence under section 32 of the Work Health and Safety Act 2011 (The Act) that

On or about the fourth day of May 2017 at Pampas… [it] was conducting a business or undertaking and held a health and safety duty… pursuant to section 19(1) to ensure as far as was reasonably practicable the health and safety of workers engaged …by [it] while …at work in the business or undertaking and failed to comply with the said duty and the failure exposed an individual to a risk or death or serious injury…

On 3 May 2017 three workers for the defendant commenced trenching work for the laying of irrigation pipes under a closed railway line on the Millmerran Branch line at Pampas. The…

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.

Continue reading Guilfoyle v Culverthorpe Pty Ltd

Details

AGLC: Guilfoyle v Culverthorpe Pty Ltd [2019] QMC 17
Case: [2019] QMC 17
Decision Date: 4 October 2019

CaseChat Overview and Summary

In the case of Guilfoyle v Culverthorpe Pty Ltd, the defendant company was charged with a contravention of work health and safety regulations after an incident in which an employee was seriously injured. The incident occurred when a 3.6-metre deep trench, dug for the purpose of laying large pipes, collapsed, trapping the employee from the waist down. The matter was heard in the relevant court, which imposed a sentence on the defendant for its failure to comply with its health and safety obligations.

The court was required to determine the appropriate penalty for the defendant's breach of health and safety regulations. The excavation of a trench for the laying of large pipes constituted high-risk construction work, and the defendant was obligated to ensure the safety of its employees. The court needed to assess the gravity of the breach, the defendant's culpability, and the potential for preventing similar incidents in the future.

The court found the defendant guilty of the offence and imposed a penalty of $75,000, as well as ordering the defendant to pay professional costs of $1,500 and $97.95. The court considered the seriousness of the breach, the potential for serious injury to the employee, and the need for deterrence and rehabilitation in determining the penalty. The sentence was intended to reflect the gravity of the offence and to promote compliance with work health and safety regulations in the future.

The court's final orders included the conviction of the defendant, a fine of $75,000, and the requirement for the defendant to pay professional costs of $1,500 and $97.95. The decision serves as a reminder of the importance of ensuring the safety of employees in high-risk construction work and the consequences of failing to do so.

Orders

Orders of the court

Convicted and fined $75,000 refer to SPER. I order the defendant to pay professional costs of $1,500 and $97.95.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Guilfoyle v Culverthorpe Pty Ltd [2019] QMC 17

Most Recent Citation

Guilfoyle v Wild Breads Pty Ltd [2021] QDC 58

Cases citing this decision · 2 of 2 shown

Guilfoyle v Niepe Constructions Pty Ltd
[2021] QMC 1 Para 3

…ling with an pre-trial application to strike out a complaint for an offence under the current WHSA; see also Guilfoyle v Culverthorpe Pty Ltd [2019] QMC 17 at [3] for particulars in the complaint. [4] Para 6 Submissions for Niepe; para 1 (viii) submissions for the complainant. [5] The context of this dispute is…
Guilfoyle v Wild Breads Pty Ltd
[2021] QDC 58 Para 45

…d (supra) and William v VH and MG Imports Pty Ltd (supra), to Richardson v Ollis Constructions Pty Ltd [2019] QMC 5; Guilfoyle v Culverthorpe Pty Ltd [2019] QMC 17 and Reynolds v Tailored Adventures Pty Ltd [2019] QDC 150. Details of those decisions were attached to the written submissions of the respondent and…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

Reynolds v Tailored Adventures Pty Ltd
[2019] QDC 150 Para 1

…The defendant submitted that Reynolds v Tailored Adventures Pty Ltd [2019] QDC 150 (Tailored), a section 32 case, is a good example of determining penalty as it postdates Orora . This was an appeal by the complainant on the ground that the sentence of a $40,000 fine was manifestly inadequate. The defendant operat…
Richardson v Ollis Construction Pty Ltd
[2019] QMC 5 Para 1

…because of the plea of guilty. Neither of those two cases are trench collapse cases. [25] Referred to in Richardson v Ollis Construction Pty Ltd [2019] QMC 5 at [12].…
Reynolds v Orora Packaging Australia Pty Ltd
[2019] QDC 31 Para 1

…of submissions, there was discussion around reliance on interstate decisions on penalty having regard to Reynolds v Orora Packaging Australia Pty Ltd [2019] QDC 31 (Orora) where McGill DCJ heard an appeal by the Complainant against the quantum of fine imposed on the basis that it was inadequate. It concerned a l…
Steward v Mac Plant Pty Ltd & Mac Farms Pty Ltd
[2018] QDC 20 Para 1

…national work health and safety laws: see para [77]. It was a section 32 case; also noted in Steward v Mac Plant Pty Ltd & Mac Farm Pty Ltd [2018] QDC 20 at [116]. [23] Williamson v VH & MG Imports Pty Ltd [2017] QDC 56 at paras [68] to [73]; this was adopted in Steward v Mac Plant Pty Ltd & Mac Farm Pty Ltd [20…
SafeWork NSW v Carroll Springs Pty Ltd
[2017] NSWDC 222 Para 1

…ted in New South Wales where a head penalty is arrived at and then a percentage discount is given. For example, in SafeWork NSW v Carroll Springs [2017] NSWDC 222[25] the court assessed the penalty at $100,000 on a plea of guilty for a section 32 breach and then in accordance with the New South Wales sentencing reg…
Bulga Underground Operations v Nash
[2017] NSWCCA 96

…AG00278248/16) Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 R v Goodwin; ex parte Attorney General [2014] QCA 345 Reynolds v Orara Packaging Australia Pty Ltd [2019] QDC 31 Reynolds v Tailored Adventures Pty Ltd [2019] QDC 150…
Williamson v VH & MG Imports Pty Ltd
[2017] QDC 56 Para 1

…ith sentencing legislation in other states. At [12] & [13] His Honour disagreed with the approach taken in Williamson v VH & MG Imports Pty Ltd [2017] QDC 56 [22] (Williamson) where the submission by the appellant/complainant in that case was accepted to the effect that in striving to achieve consistency in sent…
Landmark Operations Ltd v McKenzie
[2017] QDC 20 Para 1

…In another case, the complainant in Steward v Mac Plant Pty Ltd & Mac Farm Pty Ltd [2017] QDC 20 (Mac Plant) appealed on the ground that the penalty was manifestly inadequate. That case was concerned with less serious charges under section 33 of the Act (a Category 3 offence) and section 215 of the Work Health a…
SafeWork NSW v Bustin' Free Earthworks Pty Ltd
[2017] NSWDC 9 Para 1

…A similar approach was taken in SafeWork NSW v Bustin’ Free Earthworks Pty Ltd [2017] NSWDC 9 (Bustin) where a penalty of $120,000 was determined and then discounted 25% to $90,000. That was a section 32 breach in relation to a collapsed trench.…
R v Goodwin; Ex parte Attorney-General
[2014] QCA 345 Para 1

…referred to by the parties do not establish a clear sentencing pattern in Queensland. I note that Fraser JA in R v Goodwin; ex parte Attorney General [2014] QCA 345 at [5] said:…
Wong v The Queen
[2001] HCA 64 Para 1

…These examples are contrary to the sentencing system in Queensland and contrary to statements made in cases such as Wong v R (2001) 207 CLR 584 at [74] & [75] in favour of “instinctive synthesis” sentencing rather than “two stage” sentencing or employing a mathematical approach[26]. [26] See also paras [27] & [28] Co…

Legislation cited in this decision · 4

Work Health and Safety Act 2011 (ACT)
17, 18, 19, 26A, 275, 3, 32 8 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
11, 12, 13, 9 5 mentions (from Para 1)
Work Health and Safety Regulations 2011 (Cth)
289, 291, 297 3 mentions
Justices Act 1886 (Qld)
1 mention (from Para 1)

CITATION:	Guilfoyle v Culverthorpe Pty Ltd [2019] QMC 17
PARTIES:	Aaron John Guilfoyle (Complainant) v Culverthorpe Pty Ltd (Defendant)
FILE NO/S:	MAG-00070115/19
DIVISION:	Magistrates Courts
PROCEEDING:	Criminal
ORIGINATING COURT:	Toowoomba
DELIVERED ON:	4 October 2019
DELIVERED AT:	Toowoomba
HEARING DATE:	13 September 2019
MAGISTRATE:	G Lee
ORDER:	Convicted and fined $75,000 refer to SPER. I order the defendant to pay professional costs of $1,500 and $97.95.
CATCHWORDS:	Criminal Law – Work Health and Safety – defendant pleaded guilty to an offence of failing to comply with a health and safety duty under section 32 of the Work Health and Safety Act – excavation of 3.6 metre deep trench on a farm for laying of large pipes – high risk construction work – employee of defendant working in the trench – employee trapped from waist down as side of trench collapsed – suffered serious injuries – risk of workers suffering from serious injury as a result of collapse of trench walls – sentence Work Health and Safety Act 2011, ss 3, 17, 18, 19, 26A, 32, 275 Penalties and Sentences Act 1992, ss 9, 11, 12, 13 & 48 Work Health and Safety Regulations 2011, ss 289, 291, 297 Code of Practice 2013, Excavation Work The following cases were cited: Hitchcock v Simon Contractors Pty Ltd, (unreported), Magistrate decision 22 May 2017 (MAG00278248/16) Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 R v Goodwin; ex parte Attorney General [2014] QCA 345 Reynolds v Orara Packaging Australia Pty Ltd [2019] QDC 31 Reynolds v Tailored Adventures Pty Ltd [2019] QDC 150 Richardson v Ollis Construction Pty Ltd [2019] QMC 5 Safework NSW v Bustin Free Earthworks Pty Ltd [2017] NSWDC 9 Steward v Mac Plant Pty Ltd & Mac Farms Pty Ltd [2018] QDC 20 Williamson v APD Services, (unreported), Magistrate decision 12 January 2017 (MAG 00115079/16) Williamson v VH & MG Imports Pty Ltd [2017] QDC 56.
COUNSEL:	Ms R Lloyd for the complainant Ms L Willson for the defendant
SOLICITORS:	Office of the Work Health and Safety Prosecutor McNamara & Associates, Solicitors for the defendant