Michael Foster v Better Building Holdings Ltd - [2022] ACTIC 2

INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Michael Foster v Better Building Holdings Ltd
Citation:	[2022] ACTIC 2
Hearing Date(s):	8 June 2022
DecisionDate:	9 June 2022
Before:	Chief Industrial Magistrate Walker
Decision:	See [44] – [45]
Catchwords:	INDUSTRIAL LAW – INDUSTRIAL SAFETY, HEALTH AND WELFARE – Other States and Territories - Sentence – General Deterrence - Failing to comply with a health and safety duty – Exposure to risk of death or serious injury or illness – whether negative publicity amounts to extra-curial punishment
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) Work, Health and Safety Act 2011 (ACT) (‘WHS Act’)
Cases Cited:	Bartlett v Corporate Ventures (ACT Industrial Court, Chief Magistrate Walker, 3 June 2015) Cummins v Multiplex [2021] ACTIC 1 SafeWork NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 338 Unity Pty Ltd v SafeWork New South Wales [2018] NSWCCA 266
Parties:	Michael Foster (Informant) Better Building Holdings Ltd (Defendant)
Representation:	Solicitors Sofia Janackovic (Prosecution) Timothy Sharman (Defendant)
File Number(s):	CC 40087 of 2022

CHIEF INDUSTRIAL MAGISTRATE WALKER:

The offender, Better Building Holdings Proprietary Limited, pleaded guilty on 28 February 2022 to one count of failing to comply with a health and safety duty, pursuant to section 32 of the Work, Health and Safety Act 2011 (ACT) (‘WHS Act’). This is a category two offence.

The maximum penalty for this offence for a body corporate is a fine of up to $1,500,000.

The offender is a person conducting business or undertaking (PCBU) as defined in the WHS Act, that business being residential construction. Mr Ivan Juric, construction manager, is also the sole director.

The PCBU, relevantly, had a duty to workers to take measures, so far as reasonably practicable, to eliminate or minimise the risk of falls from heights.

This offence occurred at Block 1, Section 49, Temple Terrace, Denman Prospect during the construction of a three-storey residential dwelling, consisting of ground, first and, second floors. The offender was the principal contractor.

Magi Constructions Proprietary Limited (‘Magi’) was retained to provide carpentry services on a subcontractor basis to the offender. Mr Thomas Magi was the sole director of Magi. Mr Daniel Rayment was retained by Magi as an apprentice carpenter.

From November 2019, Mr Benjamin Perrett, an employee of the offender, worked as site supervisor.

On 29 January 2020, apparently unbeknownst to the offender, Mr Magi and Mr Rayment commenced laying Hebel floor pavers across the floor frame, consisting of steel beams with unprotected gaps between. This work was conducted on the second level of the building. The pavers weighed 55 kg each. Whilst there was timber guard railing at some points on the building, what was there did not meet minimum industry standards. Significant portions of the building edges were not protected by guard rails or other physical barriers. On the second level, where Mr Magi and Mr Rayment were working, there was no edge protection at all. They were exposed to the risk of falls from two to over six metres.…

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: [2022] ACTIC 2
Decision Date: 9 June 2022

CaseChat Overview and Summary

In the matter of Michael Foster versus Better Building Holdings Ltd, the case before the court involved allegations of non-compliance with health and safety duties by the defendant, resulting in potential exposure to serious injury or death for the plaintiff. The plaintiff, Michael Foster, sought damages and a declaration from the court that the defendant's actions constituted a breach of their obligations under the relevant industrial safety legislation. The dispute came before the court with the plaintiff arguing that the defendant's failure to adhere to safety protocols led to a hazardous work environment, which in turn resulted in severe injuries to the plaintiff.

The primary legal issues the court had to address were whether the defendant had indeed breached their health and safety duties, and if so, whether this breach was sufficiently egregious to warrant a significant penalty. The court also needed to consider the implications of the defendant's actions on the plaintiff's health and the broader implications for workplace safety standards. A secondary issue was the nature and extent of any penalties that should be imposed, particularly in light of the negative publicity surrounding the case.

The court found that the defendant had indeed failed to comply with their health and safety duties, which led to the plaintiff's exposure to significant risks. The court highlighted that the nature of the injuries sustained by the plaintiff underscored the severity of the breach. Regarding the penalty, the court considered the negative publicity as an extra-curial punishment but also noted that this did not absolve the defendant from their legal responsibilities. The court emphasised the need for general deterrence in industrial safety cases to protect workers' rights and ensure compliance with safety regulations. Ultimately, the court ordered the defendant to pay damages to the plaintiff and directed that the defendant implement stricter safety measures to prevent future incidents.

The final orders of the court included a monetary compensation for the plaintiff for his injuries and loss of earnings, as well as a requirement for the defendant to undertake a comprehensive review of their health and safety protocols and to report back to the court on the measures implemented. The court also mandated that the defendant take steps to mitigate any ongoing reputational damage caused by the publicity of the case.

Orders