IN THE MAGISTRATES COURT OF VICTORIA
AT MELBOURNE
Case No Y01597626
M O’GRADY (VWA)
INFORMANT
v
MELBOURNE BUDGET ROOFING PTY LTD
MATTHEW CHAPMAN
CHRISTIAN McCALMAN
DEFENDANTS
---
MAGISTRATE:
S GARNETT
WHERE HELD:
MELBOURNE
DATE OF HEARING:
16 SEPTEMBER 2009
DATE OF DECISION:
12 OCTOBER 2009
REASONS FOR DECISION
--Catchwords: Breaches of Occupational Health & Safety Act 2004 – worker injured when
fell down an unguarded service shaft – scaffolding absent – project managers
failed to take measures to ensure worksite safe – inherent danger in working
at heights.
--APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr Papas
VWA
For Melbourne Budget
Roofing P/L
Mr Wright
For Mr Chapman &
Mr McCalman
Mr Galbally QC
!Undefined Bookmark, I
HIS HONOUR:
1
On 10 December 2007, Leigh Cregan, an employee of Eazy-Lift Pty Ltd
sustained injuries to his shoulder, wrist and lacerations and bruising as a
result of falling a distance of 8 m through an unguarded service shaft at his
workplace. He underwent surgery on his wrist and shoulder and was
incapacitated for work because of the injuries for a period of 23 weeks.
2
At the time of the incident, the premises at which he was working were being
refurbished which included the removal and replacement of an asbestos roof
with new roofing iron. Mr Cregan had been employed since November 2007
and the court was informed that his employer pleaded guilty to breaches of
the Occupational Health and Safety Act 2004 on 24 June 2009 and Magistrate
Hawkins imposed a fine of $25,000 with conviction.
3
An agreed summary of facts was tendered to the court which indicated that
the owners of the premises in question contracted with the Dusk Home
Builders Pty Ltd to conduct the refurbishment works. Dusk Homebuilders Pty
Ltd are also facing charges but have elected to have the proceedings against
them determined by Magistrate Hawkins on 23 November 2009.
4
According to the agreed summary, “Dusk” subcontracted the role of project
management to Mr Chapman and Mr McCalman and they were paid by the
owners of the premises. Melbourne Budget Roofing Pty Ltd were engaged to
conduct the roof replacement work and they contracted with Eazy-Lift, Mr
Cregan's employer, to provide a crane and rigger dogman to lift roofing
materials onto the roof.
5
In the summary it is stated that Mr Cregan was not told of any opening or any
other safety related issues about the job to be performed.
Although he
apparently noticed the large 2 m by 2 m opening, he provided a statement that
he was not given any instruction concerning them. When the new roofing
sheets were delivered and lifted by a crane, Mr Cregan was instructed by Mr
1
Sentence
Daniels from Melbourne Budget Roofing to place the sheets in front of the
openings. When Mr Cregan was unslinging a load of roofing sheets a packing
strap slipped as he was holding it causing him to fall through the opening.
6
It is not in dispute that the openings should have been covered/guarded to
prevent such an incident occurring which is in breach of the relevant Code of
Practice and the Occupational Health and Safety Act. Mr Chapman and Mr
McCalman acknowledge that they were on the roof at the time of the incident
removing existing plant and equipment and that they were in charge of the
worksite on that day.
7
On 7 December 2007, three days prior to the incident, Mr Cole from
Melbourne Budget Roofing told Mr George from Eazy-Lift that the roof was
safe to walk on, that there had been an inspection, scaffolding would be
erected and there were no penetrations/openings. On that basis, Mr George
prepared a job safety analysis but by 10 December the conditions on the roof
had changed significantly.
8
Each defendant has pleaded guilty to the following breaches of the Act;
- Melbourne Budget Roofing: s 23 (1) & (2): in that they failed to ensure
persons, not being their employees, were not exposed to risks to their health
and safety specifically in relation to fall protection, void protection and allowing
Mr Daniels to be on a fragile roof.
- Mr Chapman and Mr McCalman: s 24 (1) & (2): as self-employed persons,
individually they failed to ensure that persons were not exposed to risks to
their health or safety.
9
It was submitted on behalf of Melbourne Budget Roofing that the company's
culpability was at the lower end of the chain as Mr Daniel’s was an
experienced contractor and he was well aware of the need to stay away from
the openings or edges of the roof. As to the financial ability of the company to
2
Sentence
pay a fine, evidence was given by Mr Cole that it is a single director company
with one employee and that the company profits for each of the last two
financial years has been between $100,000 and $130,000 with his drawings
each year of approximately $50,000.
10
In relation to Mr Chapman it was submitted that he is a 35-year-old carpenter
and that this was the first commercial project in which he was engaged. The
court was told that he has significant living expenses and mortgages, he has a
de facto partner who does not work outside the home and has two young
children. A number of character references were tendered on his behalf which
indicate that he is of good character and of high integrity. The references also
indicate that in the past he has had regard to workplace safety issues.
11
In relation to Mr McCalman it was submitted that he is also a 35-year-old
carpenter and this was the first commercial project in which he was engaged.
Following the incident, he has completed a Certificate III in Occupational
Health and Safety (Building and Construction) through the Master Builders
Association. He is in a de-facto relationship and has no children. A number of
character references were tendered on his behalf which attest to his high
standard of carpentry work and that he has been safety conscious including
when working at heights.
12
In considering the appropriate sentences to impose I have had regard to the
clear legislative intent in the Act and the fact that it is designed to promote and
enforce standards of behaviour which directly or indirectly secure the safety of
workers by the provision of a safe working environment. The Act seeks to
eliminate or reduce the likelihood of the risk of death or injury in the
workplace1.
13
In DPP v Amcor Packaging Australia P/L2 the Court of Appeal said; “Section
21 of the Occupational Health and Safety Act 1958 is directed to ensuring that
1
2
See comments of Judge Villeneuve-Smith in R v Simsmetal Ltd Unreported County Court 9 March 1989.
[2005] VSCA 219 at Para 34.
3
Sentence
employees are not subject to unnecessary risks to health in their working
environment. Responsibility to take reasonable measures to prevent such
exposure has been placed squarely on their employers. It must not be
forgotten in this context that the risk to the employer is essentially economic
whilst those to which the worker is exposed directly concern their physical or
mental well being or, as in this case, life”.
14
And at paragraph 36; “In the present case, the potential risk, which
unfortunately was realized, was that someone would be killed or seriously
injured. Little perception is required to appreciate that there would be such a
risk……. General deterrence will normally assume considerable significance
in such cases”.
15
I do not accept the contention by counsel that the culpability of Melbourne
Budget Roofing was at the lower end of the chain because Mr Daniel was
experienced. As I stated during the plea hearing, experienced and safety
conscious workers suffer serious injuries and sometimes death because of
unsafe work practices. As a specialist roofing contractor the company should
have identified the inherent risks on the job site and insisted that the
appropriate safeguards be implemented.
The obligation to ensure a safe
system of work is higher the greater the risk. The offence is serious in that
workers were allowed to perform tasks on site upon a roof in an unsafe
environment. Mr Chapman and Mr McCalman were responsible to manage
the project and thereby to ensure that there was a safe working environment
to all who came onto the site. As the Court of Appeal said in R v Commercial
Industrial Construction Group Pty Ltd3 ; “ the risk of falling when work is
carried out at height is notorious and grave. The risk of death or serious injury
is ever present. The fact that no one was killed or seriously injured as a result
of these safety breaches is irrelevant to the gravity of the company's breach.
The obligation imposed on employers by the 1985 Act-and now by the 2004
3
[2006] VSCA 181 at Para 61.
4
Sentence
Act-is to protect employees against risks. In the present case, two employees
were exposed to very grave risk.
That is the measure of the company's
culpability”.
16
In this case, there was a serious departure by Melbourne Budget Roofing Pty
Ltd, Mr Chapman and Mr McCalman from accepted and patently obvious safe
working practices and the level of risk that arose from this departure was high
which is an aggravating factor. The risk of falling whilst working at heights is
an inherent danger and as such the appropriate and accepted safe work
practices should have been implemented. The nature of the work that had to
be performed demanded the implementation of these safe work practices that
each of the defendants failed to act on.
17
In considering the appropriate penalty, I have taken into account the fact that
each defendant was co-operative with the VWA investigation, has pleaded
guilty at an early stage which indicates remorse and have no prior convictions.
I have also considered the submissions by counsel in relation to the
appropriate range of penalty that should be imposed. Ultimately, I have placed
significant weight on the nature of the breach and the principle of general
deterrence in deciding the appropriate penalty for each defendant.
18
After taking into account all of these factors, including the ability of each
defendant to pay a fine, the principles of sentencing and the fine imposed on
Eazy-Lift Pty Ltd, I will make the following orders:
ORDERS:
a.
Melbourne Budget Roofing P/L – Fine of $15,000 with conviction plus
costs of $2,000.
b.
Mr Chapman – Fine of $7,500 with conviction plus costs of $2,000.
c.
Mr McCalman – Fine of $7,500 with conviction plus costs of $2,000.
5
Sentence