Judgment
1These matters concern the prosecution of four workers under s 20 of the Occupational Health and Safety Act 2000 ("the Act") in connection with a workplace "practical joke" that went horribly wrong. The "joke" ended with a worker suffering burns to both legs requiring debridement and skin grafts as well as psychological injury.
2Section 20 of the Act provides:
20 Duties of employees
(1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work.
(2) An employee must, while at work, co-operate with his or her employer or other person so far as is reasonably necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person.
Maximum penalty:
(a) in the case of a previous offender-45 penalty units, or
(b) in any other case-30 penalty units.
3The incident resulting in the injuries to Mr Gianni Catanzaro occurred on 23 April 2010 at a work site at Kotara. Mr Catanzaro was employed by "R&D Panelform, A Limited Partnership" ("R&D Panelform"). R&D Panelform engaged other workers at the site in pouring tilt-up concrete panels as part of a construction project. These workers included Leonardo Zaccardelli, Christopher Galea, Danilo Prelevic and Rhys Vella. Other R&D Panelform workers were working at the same work site on 23 April 2010, but not on the concrete pour, namely, Scott De Gail and Russell De Gail.
4On the date of the incident, Mr Zaccardelli was left to look after the concrete pouring at the site and was the supervisor, in his role as "head concreter". Mr Denis Vella, the director of R&D Panelform Pty Ltd was not at the site on the day of the incident, but had worked there on previous days.
5Mr Catanzaro was due to get married the following day and the workers wanted to play a "practical joke" on him. It was discussed that Mr Catanzaro was to be "egged".
6Statements of facts tendered by the prosecutor in relation to each of the defendants described the incident and events leading up to it. The defendants did not put in issue the statements of facts except in the case of Mr Prelevic and Mr De Gail as to some matters they considered required clarification, and I will deal with those shortly. A consolidation of the statements described the events as follows:
Around lunchtime, Danilo Prelevic mentioned going up the road to get lunch and to also purchase some eggs. Mr Zaccardelli agreed to Mr Prelevic doing this. Mr Prelevic purchased some eggs (i.e. those subsequently used in the incident).
Russell De Gail told the workers that the egging was not a good idea and he was not going to get involved.
At approximately 1:30pm or 2pm, the workers were loading a truck with formwork material. When Mr Catanzaro descended from the truck, he was grabbed by Mr Zaccardelli and Mr Galea. Someone, though not Mr Galea, hit Mr Catanzaro in the groin.
Mr Catanzaro was then placed against a piece of steel mesh, held in place by Mr Zaccardelli and Mr Galea, and had his hands and legs tied up with duct tape.
Mr Zaccardelli then cut Mr Catanzaro's clothes off using a knife, leaving him only in his underwear.
Workers then threw the eggs at Mr Catanzaro. When some of the eggs bounced off Mr Catanzaro and did not break, Mr Zaccardelli walked up with an egg and broke it onto Catanzaro's forehead.
Other workers then continued to throw eggs at Mr Catanzaro while laughing about it. One or more of those present also took photographic footage of the incident on their mobile phones.
After the eggs had been thrown, Mr Zaccardelli grabbed a 'jerry can' of fuel from the back of the truck parked nearby. He then proceeded to pour the fuel in a half circle on the ground near Mr Catanzaro, who was still bound.
Mr Zaccardelli then called out to Scott De Gail, (who had left the immediate vicinity shortly before Mr Catanzaro was tied up, but was still at the work site) for a cigarette lighter. Scott De Gail carried a lighter as he was a smoker and he provided Mr Zaccardelli with his lighter. Mr De Gail states that he did not know what the lighter was to be used for. Mr Zaccardelli went back over to Mr Catanzaro and then lit the fuel with the cigarette lighter in front of Mr Catanzaro, starting the fire.
The flames were approximately knee high. Mr Catanzaro struggled and fell, towards the fire, sustaining burns to his legs.
Before the petrol was lit, none of Mr Galea, Mr Prelevic or Mr Scott De Gail intervened or helped Mr Catanzaro. Once the fire was lit, Mr Galea went looking for water to put the fire out.
Rhys Vella and Russell De Gail were spectators during the incident.
At all material times R&D Panelform had a workplace policy which included the requirement: "No horse-play Serious injuries can result from horse-play or practical jokes". The incident was a breach of that policy.
After Mr Catanzaro hit the ground, one of his co-workers picked him up from the ground and others, including Scott De Gail, put out the fire. He was then given a spare set of clothes from the nearby truck and walked to the site shed where he had a shower and put the spare clothes on.
By this time a supervisor from Taylor Constructions had seen the smoke and came over to the incident site. Mr Catanzaro was not offered First Aid by his R & D Panelform colleagues, but instead by Taylor Constructions employees. Catanzaro subsequently left the site in his own car.
As a result of the fire, Mr Catanzaro suffered physical injuries in the form of partial thickness burns to both legs below the knees requiring debridement and skin grafts and also suffered psychological injuries.
Mr Catanzaro is no longer employed by 'R&D Panelform, A Limited Partnership'.
7The charge against Leonardo John Zaccardelli was originally pursuant to s 9 of the Act and, in the alternative, s 20. However, the prosecutor accepted a plea of guilty to the s 20 charge. That charge was in the following terms:
On 23 April 2010 at Kotara in the State of New South Wales, the defendant, being an employee, while at work, failed to take reasonable care for the health and safety of a person, namely Gianni (known as 'John') Saverio Catanzaro, at the employee's place of work and who may be affected by the employee's acts or omissions at work, contrary to Section 20 of the Occupational Health and Safety Act 2000.
The particulars of charge are that:
1.The risk was the risk of serious injury in the form of burns, concussion, abrasions, bruising, and psychological injuries.
2.The defendant's acts or omissions were any one or combination of the following:
(a)The defendant performed any one or more of the following acts on Mr Catanzaro - grabbing him, hitting him in the groin, placing him on a sheet of mesh, tying up his hands and legs with tape, cutting his clothes off with a knife, leaving him in his underwear, throwing eggs at him, breaking eggs on him, pouring a half circle of petrol near the front of his feet, obtaining a cigarette lighter and lighting the petrol using the lighter which led to a fire.
(b)The defendant did not follow a policy of "No horse-play Serious injuries can result from horse-play or practical jokes".
(c)The defendant should have provided adequate supervision that prevented or reduced to the extent reasonably practicable the occurrence at work of horse-play and practical jokes.
(d)The defendant, as the senior concreter and/or as the concreter whom the others did what he told them to do did not adequately prevent or reduce to the extent reasonably practicable the occurrence at work of horse-play and practical jokes.
3.Mr Catanzaro suffered partial thickness burns to both legs below the knees requiring debridement and skin grafts, as well as psychological injuries.
4.As a consequence of the acts and omissions of the defendant, as particularised above, on 23 April 2010 Gianni (known as 'John') Catanzaro was exposed to risk of serious injury and sustained serious injury.
8The s 20 charge against Mr Galea was that on 23 April 2010 at Kotara in the State of New South Wales, being an employee, while at work Christopher Charles Galea failed to:
by his acts and omissions particularised below, take reasonable care for the health and safety of a person, namely Gianni (known as 'John') Catanzaro, at the employee's place of work and who may be affected by the employee's acts or omissions at work, contrary to Section 20 of the Occupational Health and Safety Act 2000.
The particulars of charge are that:
1.The risk was the risk of serious injury in the form of burns, concussion, cuts, abrasions, bruising, and psychological injuries.
2.The defendant's acts or omissions were any one or combination of the following:
(a)The defendant performed any one or more of the following acts on Mr Catanzaro - grabbing him, placing him on a sheet of mesh, tying up his hands and legs with tape and throwing eggs at him.
(b)The defendant omitted to intervene to help Mr Catanzaro before the petrol was lit.
(c)The defendant did not follow a policy of "No horse-play Serious injuries can result from horse-play or practical jokes".
3.Mr Catanzaro suffered partial thickness burns to both legs below the knees requiring debridement and skin grafts, as well as psychological injuries.
4.As a consequence of the acts and omissions of the defendant, as particularised above, on 23 April 2010 Gianni (known as 'John') Catanzaro was exposed to risk of serious injury and sustained serious injury.
9The s 20 charge against Mr Prelevic was that on 23 April 2010 at Kotara in the State of New South Wales, being an employee, while at work Danilo Prelevic failed to:
by his acts and omissions particularised below, take reasonable care for the health and safety of a person, namely Gianni (known as 'John') Catanzaro, at the employee's place of work and who may be affected by the employee's acts or omissions at work, contrary to Section 20 of the Occupational Health and Safety Act 2000.
The particulars of charge are that:
1.The risk was the risk of serious injury in the form of burns, concussion, cuts, abrasions, bruising, and psychological injuries.
2.The defendant's acts or omissions were any one or combination of the following:
(a)The defendant purchased and contributed to the eggs for the practical joke or horse play.
(b)The defendant omitted to intervene to help Mr Catanzaro before the petrol was lit.
(c)The defendant did not follow a policy of "No horse-play Serious injuries can result from horse-play or practical jokes".
3.Mr Catanzaro suffered partial thickness burns to both legs below the knees requiring debridement and skin grafts, as well as psychological injuries.
4.As a consequence of the acts and omissions of the defendant, as particularised above, on 23 April 2010 Gianni (known as 'John') Catanzaro was exposed to risk of serious injury and sustained serious injury.
10The s 20 charge against Mr De Gail was that on 23 April 2010 at Kotara in the State of New South Wales, being an employee, while at work Scott Russell De Gail failed to:
by his acts and omissions particularised below, take reasonable care for the health and safety of a person, namely Gianni (known as 'John') Catanzaro, at the employee's place of work and who may be affected by the employee's acts or omissions at work, contrary to Section 20 of the Occupational Health and Safety Act 2000.
The particulars of charge are that:
1.The risk was the risk of serious injury in the form of burns, concussion, cuts, abrasions, bruising, and psychological injuries.
2.The defendant's acts or omissions were any one or combination of the following:
(a)The defendant provided a lighter to Leonardo John Zaccardelli during the practical joke.
(b)The defendant omitted to intervene to help Mr Catanzaro before the petrol was lit.
(c)The defendant did not follow a policy of "No horse-play Serious injuries can result from horse-play or practical jokes".
3.Mr Catanzaro suffered partial thickness burns to both legs below the knees requiring debridement and skin grafts, as well as psychological injuries.
4.As a consequence of the acts and omissions of the defendant, as particularised above, on 23 April 2010 Gianni (known as 'John') Catanzaro was exposed to risk of serious injury and sustained serious injury.