R v Canberra Contractors Pty Ltd

[2016] ACTSC 13

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Canberra Contractors Pty Ltd

Citation:

[2016] ACTSC 13

Hearing Date(s):

16 December 2015

DecisionDate:

29 January 2016

Before:

Burns J

Decision:

A conviction is recorded and the defendant is fined $82,500.

Catchwords:

OCCUPATIONAL HEALTH AND SAFETY – Prosecution under s 31(1) of the Work Safety Act 2008 (ACT) – failure to comply with safety protocols – foreseeability – early guilty plea – financial assistance to deceased’s family – remorse – no evidence of systemic failure on the defendant’s part – general deterrence – penalty imposed.

Legislation Cited:

Work Safety Act 2008 (ACT) s 31(1)

Cases Cited:

Inspector James v Terra Civil Pty Ltd [2011] NSWIRComm 31

Inspector Patton and Star Track Express Pty Ltd [2007] NSWIRComm 192
Inspector Peter Newman v Mainland Civil Pty Ltd [2003] NSWIRComm 288

Inspector Andrew Rowe v Roads Maritime Services of New South Wales [2012] NSWIRComm 43

Parties:

The Queen (Crown)

Canberra Contractors Pty Ltd (Defendant)

Representation:

Counsel

Mr A Williamson (Crown)

Mr K Archer (Defendant)

Solicitors

ACT Director of Public Prosecutions (Crown)

O’Connor Harris & Co (Defendant)

File Number(s):

SCC 264 of 2014

BURNS J:

1. The defendant company has pleaded guilty to one offence contrary to s 31 (1) of the Work Safety Act 2008 (ACT) alleging that it, on 12 December 2011, being a person who had a safety duty, failed to comply with that duty and that failure exposed someone, namely Wayne Vickery, to a substantial risk of serious harm and was negligent about whether that failure would expose anyone to a substantial risk of serious harm.

1. The maximum penalty for this offence as at 12 December 2011, if the offence was committed by a natural person, was a fine of 1000 penalty units, imprisonment for two years or both.  As the defendant is a corporate entity it is only subject to the imposition of a fine.  The maximum penalty that may be imposed is, therefore, a fine of 1000 penalty units which equates to $550,000.

1. An Agreed Statement of Facts was tendered at the sentence hearing and I do not propose reciting the facts in detail.  It is sufficient to note that the offence relates to a fatal accident where Wayne Vickery, who for convenience I will refer to as the deceased, was struck by a reversing road grader on a site controlled by the defendant in Macgregor in the Australian Capital Territory.  The deceased was a very experienced construction worker who had been employed by the defendant on a full time basis since November 2001.

1. By December 2011 he was nominally employed as a plant operator but in reality performed the duties of a leading hand which involved being a grade checker and a plant operator.  He was a union representative and also the company's occupational health and safety representative.

1. The deceased, as I have noted, was fatally injured when struck by a reversing road grader.  The effective cause of the accident was a failure by both the…