WorkCover Authority of NSW (Insp Bourne) v Delta Pty Limited [2000] NSWIRComm 67 | Case summary

1 These proceedings involve a prosecution instituted by Inspector Arthur Maxwell Bourne of the WorkCover Authority of New South Wales, against Delta Pty Limited, a company incorporated in New South Wales, for an alleged breach of s 15(1) of the Occupational Health and Safety Act 1983. Section 15(1) imposes the obligation on an employer to "ensure the health, safety and welfare at work of all the employer's employees". 2 The alleged breach arises out of the collapse of a structure undergoing demolition in May 1997 thereby seriously injuring two employees of the defendant. The summons alleges that "the defendant, being an employer, did fail to ensure the health, safety and welfare at work of all its employees and in particular Branislav Brdaric and Murray John Robinson, contrary to section 15(1) of the Occupational Health and Safety Act, 1983 in that it failed to provide and maintain a system of work for the demolition of the Cattle Pavilion, Building 39, "the building structure" that was safe and without risk to the health of its employees." 3 The defendant was represented by Mr E Smith of counsel. The prosecutor was represented by Mr M Shume of counsel. The defendant entered a plea of guilty to the charge. FACTS AND CIRCUMSTANCES 4 Drawing upon the affidavits, exhibits and the agreed statement of facts filed in these proceedings, as well as the oral evidence of Mr Lombardi an Engineer employed by the defendant at the time of the offence, and Mr Waterhouse Snr, the defendant's Demolition Supervisor on the site, the evidence shows that the defendant was a duly incorporated company with operations in New South Wales and Victoria. Further, the defendant conducted a business specialising in demolitions, concrete recycling, asbestos removal, civil construction, earthworks and site retention. The business had been operating since 1981. The business employed 55 employees in Sydney and 100 employees in Melbourne where its Head Office is located. The defendant was the holder of a Demolition Licence issued by the WorkCover Authority of New South Wales under the Occupational Health and Safety (Demolition Licensing) Regulation 1996. 5 In early 1997 the defendant entered into an agreement with Civil & Civic to demolish a number of buildings on the Fox Studio premises, formerly known as the Royal Agricultural Showground, at Moore Park in Sydney. On 30 May 1997 the particular task being undertaken by the defendant was the demolition of Building 39. The building - formerly part of the Cattle Pavilion - was described in the affidavit of Mr Frank Lombardi, as a "large span steel framed" structure measuring "approximately 60 metres long x 10 metres wide x 12 metres in height". It was clad with asbestos cement sheeting and sat on a concrete floor and foundations. There were four other similar large structures on the site that had been demolished by the defendant. Building 39 was the last of these structures to be demolished. In his affidavit Mr Lombardi said: "Although the buildings were old, they appeared to me to be structurally sound and there was nothing about their appearance which suggested to me that the integrity of their supporting frames had been in any way compromised." 6 The demolition method adopted in relation to Building 39 was to induce a controlled collapse of the building. This was said by Mr Lombardi to be a recognised demolition technique in the industry in relation to large steel span framed structures. Shortly put, the sequential steps involved in the demolition of Building 39 were to be as follows: (i) Removal of cladding and roofing leaving a free standing steel frame structure; (ii) Cutting the building roof purlins and lateral support members at approximately a mid way point on the building frame - in effect cutting the steel frame structure in half so that each half could be demolished separately; (iii) Making 'hinge cuts' on one side only of the vertical steel support staunchions of that half of the building to be demolished to enable a controlled collapse in a southerly direction. The hinge cuts were made using oxyacetylene equipment at the top and bottom of each staunchion on the northern and southern walls; (iv) Cutting the roof purlins securing the frame to the end wall (in this case the end wall was at the eastern end of the structure). This would allow the main part of the frame to be pulled over in a southerly direction; (v) Attaching chains to the main portion of the structure and pulling it over using an excavator. The original demolition plan for the five large buildings (including Building 39) called for "walking an excavator into the free standing isolated portion of the frame to push the building over in the direction of the hinge cuts". However, this was changed on the instructions of Mr Waterhouse Snr, to the 'chains method'. Chains were used in the demolition of all five large structures and to that extent the use of chains on Building 39 was not exceptional although the necessary permission from the WorkCover Authority under Regulation 84AB(4) of the Construction Safety Regulations, 1950 to use the chains was not obtained by the defendant; (vi) Pushing the remaining free standing eastern end wall over onto the collapsed main portion of the structure using an excavator. 7 Prior to any demolition occurring a pre-work inspection was carried out and a risk assessment undertaken of all the buildings to be demolished at the Showgrounds/Fox Studio site. The inspection and risk assessment carried out by Mr Lombardi and Mr Waterhouse Snr did not reveal that "2 or 3 of the 5 or 6 vertical steel support members forming the frame of the eastern end wall were badly rusted, and in one case rusted right through below the level of the concrete floor slab at the southern side of the building". In his affidavit Mr Lombardi said: " Although I did not inspect the base of each and every steel support staunchion in each and every structure to be demolished, I did closely inspect a sample number of staunchions in each of the buildings to be demolished to assess their integrity." In his affidavit Mr Waterhouse Snr said in this connection: "Although I inspected the vertical steel support staunchions in each of the buildings I inspected from the inside in order to assess their integrity and condition, the base of each of the staunchions in each and every one of the pavilions to be demolished was not inspected by me. I detected no apparent weakness or structural defect in any of the buildings I inspected which would suggest that a controlled collapse demolition method was inappropriate." 8 At about 9.30 am on 30 May 1997 Mr Brdaric and Mr Robinson, two employees of the defendant, were on a scissor lift (an elevated work platform) at the eastern end of the building. The two employees were inside the building and were, or were about to (the evidence is not clear on this), cut the last of the timber purlins attaching the main portion of the structure to the eastern end wall when the building structure collapsed. The collapsing building structure fell onto the scissor lift upon which Messrs Brdaric and Robinson were standing and caused it to topple and buckle. Messrs Brdaric and Robinson sustained serious personal injury as a consequence. Mr Brdaric sustained a compound fracture of one arm, injuries to the liver, fractured ribs and a fractured pelvis. Mr Brdaric remains employed with the defendant but he is currently off work. Mr Robinson sustained lacerations to the left leg involving tendon injury, fractured pelvis, loss of teeth, injuries to the cheek and gum of his mouth and lacerations to his right arm. He did not return to his employment following his injuries and went to New Zealand in May 1999. 9 The evidence reveals that two structurally related factors combined to contribute to the uncontrolled collapse of the structure. Firstly, hinge cuts (to a depth of about three-quarters of the width of the staunchions) made to most (one or two remained to be cut) of the steel support staunchions as part of the demolition process necessarily weakened the structure. Secondly, rust induced damage in a number of the steel support members at the eastern end wall critically weakened the strength of those steel supports. As the timber purlins connecting the main portion of the structure at the south-eastern corner of the end wall were cut the end wall "began to lean to the east". The remaining purlins securing the main portion of the structure to the eastern end wall then "transmitted a lateral force to the hinge cut frame, effectively pulling it toward the east" causing the structure to collapse to the east rather than as planned, towards the south. 10 The agreed statement of facts indicates that on the morning of the uncontrolled collapse Mr Waterhouse Snr, the demolition supervisor employed by the defendant, was attending a training course at Parramatta having been given approval to do so by the defendant's State Manager, Mr David Riddell. 11 Mr Waterhouse Snr decided to delegate his responsibilities for the demolition work to be carried out on 30 May 1997 to his son, Mr Gary Waterhouse Jnr. Mr Waterhouse Jnr was employed as a plant operator by the defendant. During the evening prior to the uncontrolled collapse, Mr Waterhouse Jnr received instructions from his father on what tasks were required to be carried out in his father's absence. These tasks related to the ongoing demolition of Building 39. Essentially, Mr Waterhouse Jnr was instructed to carry out the remaining demolition of Building 39 in accordance with the Work Method Statement (except that chains were to be used to pull the structure over) and in the manner in which the other cattle pavilions had been demolished on the site. The instructions from Mr Waterhouse Snr to his son were given in the presence of Messrs Brdaric and Robinson as well as a Mr Pemberton who was employed by the defendant as a truck driver and heavy plant operator. 12 Mr Waterhouse Jnr, unlike his father, was not a "qualified person" for the purposes of supervising demolition works within the meaning of reg 8(3)(d) of the Occupational Health and Safety (Demolition Licensing) Regulation, 1996. A "qualified person" is a person who: (a) has completed an approved course relating to carrying out demolition work; or, (b) in the opinion of WorkCover, possesses appropriate experience or training in carrying out demolition work (see reg 8 (4) of the Occupational Health and Safety (Demolition Licensing) Regulation, 1996). A corporation that holds a licence under the Regulation is required to ensure that, during the carrying out of demolition work, a qualified person will supervise the carrying out of the work. 13 On the day of the offence Mr Waterhouse Jnr was, according to his affidavit, "acting supervisor looking after the performance of work that morning while my father was temporarily absent from the site attending a training course." Mr Waterhouse Jnr continues: "I had been requested to act as supervisor by my father at a site meeting the previous evening. I had previously acted as supervisor during the course of demolition works at the site on 4 or 5 occasions on my father's instructions while he was temporarily absent." From the evidence this appears to be the extent of experience of Mr Waterhouse Jnr in supervising demolition work. 14 On the morning of the offence Mr Waterhouse Jnr deposes that the remaining hinge cuts were made in the vertical support staunchions from elevated work platforms. He says that some of this cutting was carried out by Messrs Brdaric and Robinson after which they proceeded to take their elevated work platform to the eastern end wall to cut the roof purlins securing the end wall to the eastern half of the frame. 15 Mr Waterhouse Jnr further deposes that during the course of work he noticed that the frame of the eastern end wall was beginning to separate and move out at the top in an easterly direction from the frame of the building. The degree of separation was "approximately 600 to 800 mm". In his affidavit Mr Waterhouse Jnr states "I was concerned that the eastern end wall was laying over as it became detached from the remainder of the structure and it appeared to me that that there was a risk of it falling over. I was also concerned as to what effect this could have upon the eastern portion of the building which had already been weakened with hinge cuts to facilitate its demolition". 16 Mr Waterhouse Jnr says he then called a halt to the work and instructed Messrs Brdaric and Robinson to take their scissor lift outside the structure and to make the last purlin cuts from that location. In this connection Mr Waterhouse Jnr says in his affidavit "I realised that Bruno (Brdaric) and John (Robinson) wanted to complete the cutting from inside the frame of the building but this appeared to me to be unsafe given the lean on one end of the wall frame. I told them to complete the work from outside." However, the agreed statement of facts at paragraph 12 states that: "According to Brdaric and Robinson, the final purlins could not be cut from outside the structure without getting out of the scissor lift and they sought and obtained Gary Waterhouse Jnr's permission to make the cuts from the inside of the building. According to Gary Waterhouse Jnr this permission was not given, and he assumed the final cuts would be made from outside the structure". I am unable to say conclusively from the evidence whether or not Mr Waterhouse Jnr did or did not agree that the final cuts could be made from inside the building. 17 Mr Waterhouse Jnr also says he instructed Mr Pemberton to "move his excavator into position at the eastern end wall and to lean its elevated grab up against the wall to support the wall frame while the final cuts (to the timber purlins) were made". Mr Waterhouse Jnr then returned to the scissor lift he had been operating at the southern side of the eastern end of the building to continue work. 18 The agreed statement of facts then states "… Pemberton was moving the excavator and had not yet placed it in a supporting position at the eastern end wall when Brdaric and Robinson went back up in the scissor lift and commenced cutting the final purlins from inside the structure". As Brdaric and Robinson were in the process of making the final cuts the structure collapsed striking the scissor lift and resulting in serious personal injury to both Mr Brdaric and Mr Robinson. SUBMISSIONS OF THE PROSECUTION 19 Mr Shume canvassed the evidence in the proceedings. He tendered a number of exhibits that included eleven photographs which he used to show the court how the structure collapsed and the consequences of that collapse. For the purpose of enabling cross examination, Mr Lombardi and Mr Waterhouse Snr were called and a number of questions were put to them by Mr Shume, in particular about the process the witnesses followed in inspecting the steel staunchions. In his oral evidence Mr Waterhouse Snr said that even if he had inspected the staunchions affected by rust he would not have detected this because the rust was below the level of the concrete floor and would not, therefore, have been evident to the naked eye. 20 Mr Shume then addressed the issue of penalty. He referred to a decision of Glynn J in WorkCover Authority of New South Wales (Inspector Mansell) v Air Express International (Australia) Pty Limited (1996) 83 IR 64 at 71 where her Honour summarised a number of the principles governing penalty. 21 Mr Shume conceded that unlike the situation in Hannah v Wonar Pty Ltd (1992) 34 AILR 377 there was no "known and perceived danger, unchecked and left in place". 22 Nevertheless, Mr Shume submitted that it was "a serious matter and a dangerous matter" but not a matter that "falls at the top end of the cases". In terms of the penalty the offence should attract, I infer from what Mr Shume put that it should fall somewhere between the "low" and "middle" range. 23 Mr Shume referred to a number of factors that might be taken into account in mitigation and these included the fact that no previous convictions had been recorded against the defendant, that a pre - work inspection had been carried out of the steel staunchions, that action had been taken "very promptly" to collapse the remaining half of Building 39 and that, following the offence, the defendant was inspecting all staunchions prior to demolition being carried out. 24 Mr Shume also referred to the plea of guilty and the fact that the defendant had cooperated with WorkCover in the investigation of the matter. SUBMISSIONS OF THE DEFENDANT 25 Mr Smith's submissions may be summarised as follows:

The decision of Glynn J in Air Express International is an accurate summary of the sentencing principles in this jurisdiction;
The primary factor in sentencing is the nature and quality of the offence;
Foreseeability is not relevant to guilt or innocence but it is relevant to assessing penalty;
The offence flows from a set of circumstances which were not known or obvious; the offence did not flow from a careless or wilful disregard of safety rules by the employer; the offence did not flow from a risk that could be said to be reasonably foreseeable. Mr Smith submitted "…. What's occurred here …. is that there was a hidden defect in this building in one small part of it, and it was unique to that structure. Four identical buildings had already been demolished using the same exact method". Mr Smith went on to describe how the staunchions were affected by rust below ground level and how this did not become apparent until the wall started to collapse;
Reliance was placed on the decision of Hungerford J in James Moore v Vibro-Pile Pty Limited (CT 1163 of 1996, 28 May 1997, unreported). In that case keys were left in a mobile crane on a multi storey building. An employee of a sub contractor on the site, who was not authorised to do so, activated the crane and accidentally drove it over the edge of the building causing serious injury to himself. Hungerford J found that while the risk to safety was reasonably foreseeable it was not the product of any wilful disregard for safety but was only consistent with industry practice on building sites. His Honour found that the offence was not of a minor nature but it was not as serious as the offences in Davies v Supercoat Feeds Pty Limited (Fisher P, CT96/1020, 22 April 1997, unreported) or WorkCover Authority of New South Wales v The University of Sydney (Hill J, CTCT95/1280, 2 April 1997, unreported), two judgments canvassed by his Honour. Mr Smith sought to draw a parallel with Vibro-Pile. As was the case in Vibro-Pile, the offence in the present case was not a minor offence but at the same time it was not serious and obvious. It was not, Mr Smith submitted, the product of any wilful disregard for safety;
A site safety inspection and risk assessment were carried out by the defendant prior to the commencement of the demolition works;
There was a written safe work plan and written environmental and safety plan;
The fact that work was done in a manner inconsistent with the Work Method Statement (that is, use of chains) this in no way contributed to the collapse of the structure;
Bracing is not normally required for the type of structure that was demolished. It is only required where there is a question about structural integrity or some weakness that is detected;
The defendant entered an early plea of guilty;
There was cooperation with WorkCover; the defendant has an excellent safety record; the defendant has been in business for twenty years in a dangerous industry; the defendant has no prior convictions either in Victoria or New South Wales; the defendant was closely involved with the drafting of the demolition licensing regulation in 1995 and 1996; it takes its responsibility for health and safety seriously; the defendant is the largest demolition company in the country and one of the largest in the southern hemisphere;

In Inspector Hannah v Rice Growers Co-Operative Limited (unreported, CT90/88, 20 November 1990), Fisher P commented, in relation to an offence under s15 of the Act, that (at p7-8): It was true that it may be difficult to anticipate the way in which even an obvious and avoidable risk may work itself out. Most serious accidents are not anticipated. This does not excuse any employer from a failure to employ a safe system of work incorporating obvious and desirable safety measures." 42 Where a plea of guilty is entered by the defendant the court is required under s 439(1) of the Crimes Act 1900 to afford a degree of leniency. The principles in relation to discounting for a plea of guilty were referred to in R v Winchester (1992) 58 A Crim R 345: "A plea of guilty may be taken into account as a mitigating factor independently of an indication of remorse on the basis that the applicant's co-operation saves the time and costs of the trial. The extent of leniency afforded will depend on when the plea of guilty was entered and the consequent savings effected." 43 In relation to quantifying the mitigating factors a Full Bench of the Commission in Court Session in Nesmat (at 322) said: "It is neither possible nor appropriate to quantify each of these mitigating factors and so determine the extent to which each is reflected in the penalty fixed. But the authorities make clear that there is a general principle that a plea of guilty, particularly at an early stage, will always result in "a substantial reduction" in the sentence imposed." CONSIDERATION 44 In considering the facts involved and the circumstances of this offence it is clear that the defendant failed to meet its obligations under s15(1) of the Occupational Health and Safety Act. 45 Supervision of the demolition of the eastern half of Building 39 was left in the hands of an unqualified and relatively inexperienced person, namely, Mr Gary Waterhouse Jnr. This seriously compromised the safety of the demolition operation and put at risk the health, safety and welfare of the defendant's employees. 46 The absence of the Demolition Supervisor, Gary Waterhouse Snr, was approved by the State Manager of the defendant at a time when demolition work on the site had reached a critical phase, namely, inducing the collapse of a large structure. This constituted a serious error of judgment in respect of the defendant's responsibilities under the Occupational Health and Safety Act. Exhibit B in the proceedings, which is a Statement taken by Inspector Bourne on 25 August 1997 and headed "Factual Inspection: Proposed Fox Studios/Royal Australian (sic) Showground", states on page 6 that: "The supervisor of the demolition site, (Gary Waterhouse) has admitted that he was not at the site on the day of the accident. He also has admitted that this was wrong." 47 I referred earlier to the absence of qualifications on the part of Mr Waterhouse Jnr under the Occupational Health and Safety (Demolition Licensing) Regulation, 1996 and his relative inexperience in the supervision of demolition work. This is manifested in the events leading up to the uncontrolled collapse of the structure on the morning of 30 May 1997. 48 On noticing that the eastern end of the wall was leaning out to the east by 600-800mm and understanding, as he said he did, the implications of this for the remainder of the structure, Mr Waterhouse Jnr says he called a temporary halt to work and gave some instructions to Messrs Brdaric and Robinson to continue cutting the purlins from outside the building. Mr Pemberton was instructed to place the grab of a mechanical excavator up against the end wall, presumably to prevent it falling over. As it happened, Messrs Brdaric and Robinson continued with the task of cutting the purlins from inside the building. The agreed statement of facts states that the reason why Messrs Brdaric and Robinson remained inside the building is that Mr Waterhouse Jnr gave them permission to do so. Mr Waterhouse Jnr says this is not the case. Even accepting Mr Waterhouse Jnr's version of events, he did know that these two employees wanted to continue the task from the inside of the building. Even though he knew this, and knew that the building was now unsafe and there was a danger of collapse, he did not wait to ensure that his instructions were carried out. 49 Given the obvious, serious and imminent danger of the situation, it is difficult to comprehend that work should have continued in the manner that it did. Most certainly by this time the structure was unstable and unsafe. An immediate evacuation and the attendance of an engineer, or the recall of Mr Waterhouse Snr, would seem to have been the appropriate response to the situation confronting Mr Waterhouse Jnr. This is especially so in the light of his inexperience. At the very least, the structure should have been properly braced before any work was allowed to continue. 50 It does seem extraordinary given the dangerous state of the structure that Messrs Brdaric and Robinson would have continued cutting purlins from any position or location, whether inside or outside the structure. These events testify to the relative inexperience of Mr Waterhouse Jnr. 51 This situation should not have been allowed to develop and Mr Waterhouse Jnr should not have been put in the position of supervising the demolition work. 52 The defendant created a serious risk - a detriment to safety - to its employees by not ensuring an experienced and qualified demolition supervisor was present; by allowing a situation to arise where a relatively inexperienced and unqualified person could be, and was, put in charge of demolition work; by not ensuring that clear procedures applied and were followed where it became evident that a building was unsafe in the course of demolition; and by not taking all practicable precautions by shoring or otherwise to prevent danger to any person from the collapse of the structure. 53 I find also that there was inadequate supervision and a lack of clear instructions and procedures on the part of the defendant leading to a breach of its duty to ensure the health, safety and welfare at work of its employees. 54 The lack of clear instructions and procedures is manifested by what is said in the agreed statement of facts: "17 The Work Method Statement: (i) was not building specific; (ii) did not include details of a chain-pull induced collapse, but required the collapse to be induced by pushing the destabilised building with an excavator in the required direction; (iii) lacked a detailed description of the individual tasks required to prepare the building for collapse; and (iv) did not contain engineering details concerning the bracing of the building during preparation for felling." 55 Another indication of the lack of procedure and inadequacy of the supervision is the confusion that arose in the mind of Mr Brdaric over how many hinge cuts had been made to the steel staunchions. In the agreed statement of facts at paragraph 19 Mr Brdaric said that he "would not have gone up there (to cut the remaining purlins at the eastern end of the structure) if all the uprights had been cut and I had known they had been cut. It would be pretty silly to do so." Mr Waterhouse Jnr was asked whether Messrs Brdaric and Robinson were aware that the hinge cuts had been made in the staunchions (see Paragraph 20 of the agreed statement of facts). Mr Waterhouse replied: "Yes, I think they had done some of the cutting themselves." Mr Waterhouse Jnr stated earlier in paragraph 20 of the agreed statement of facts that "there were probably four people who had been involved in doing those (hinge) cuts ……" I've come to the view that Mr Waterhouse Jnr did not really know what the state of knowledge was of Messrs Brdaric and Robinson in relation to the number of hinge cuts. It would indeed seem "pretty silly", to use Mr Brdaric's words, to proceed from inside the building on an elevated platform to cut timber purlins connecting the main portion of the structure to the east end wall, which was leaning outwards some 600-800mm, knowing that all or most of the staunchions on the northern and southern walls had been cut three quarters through. It seems that Mr Brdaric was not aware that all or most of the staunchions had been hinge cut. This dangerous confusion could well have been avoided under a proper supervisory regime, supported by a detailed description and allocation of the individual tasks required to prepare the building for collapse. 56 Accordingly, I find that the defendant failed to ensure the health, safety and welfare at work of all of its employees and in particular Branislav Brdaric and Murray John Robinson, contrary to section 15(1) of the Occupational Health and Safety Act in that it failed to provide and maintain a system of work that was safe and without risk to the health of its employees. It is, therefore, appropriate that the defendant's plea be accepted and that it be convicted of the offence charged. 57 In determining the penalty to be imposed subjective factors must be taken into account. In this regard, I accept that the defendant has an exemplary safety record and that this is over a long period of time - some twenty years in a notoriously dangerous industry. I also take into account the defendant's involvement in the formulation of the Occupational Health and Safety (Demolition Licensing Regulation) 1996 through the participation by its State Manager, Mr Riddell on a working party in 1995 and 1996. 58 It is also necessary that I make allowance for the plea of guilty entered reasonably early. The defendant's cooperation with WorkCover and the steps taken since the offence to remedy the problem, namely, closer inspection of steel framing before demolition occurs and propping where any weakness is possible, are also taken into account in the defendant's favour. I accept the defendant is contrite and I note that the Managing Director came up from Melbourne to attend the hearing. 59 On the issue of foreseeability I acknowledge that the defendant had not previously encountered the problem of rust induced weakness in steel supports being a cause of collapse of a structure. However, as Fisher P said in Inspector Hannah v Rice Growers' Co-operative Limited: "Most serious accidents are not anticipated. This does not excuse any employer from a failure to employ a safe system of work incorporating obvious and desirable safety measures." 60 I also acknowledge that both Mr Lombardi and Mr Waterhouse Snr did carry out inspections of the structures to be demolished but the weakness in the steel staunchions was not detected. In his oral evidence Mr Waterhouse Snr says that even if he had inspected the staunchions in question he would not have detected the rust because it was below the level of the concrete floor. I have given weight to the claim in the defendant's favour that the risk to safety was not entirely foreseeable and unlike the situation in Hannah v Wonar Pty Ltd there was no "known and perceived danger, unchecked and left in place". 61 Nevertheless, the nature and quality of the offence leads me to the view that it was a serious offence. While I accept that the risk to safety was not entirely foreseeable and the danger was not obvious or known, these factors can only be accepted in mitigation up to a point. As I have found, the absence of proper and adequate supervision and the lack of clear instructions and procedures on the part of the defendant in the dangerous business of demolition lie at the core of this offence. It is these factors that have contributed significantly to the failure of the defendant to discharge its duty under s 15(1) of the Occupational Health and Safety Act 1983. 62 As it was said in Warman International Ltd, in determining a penalty the level of penalty must, on the one hand, compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high. 63 The maximum penalty applicable at the time of the offence was $500,000. The maximum, of course, is reserved for the worst of cases and this is certainly not one of them. 64 I consider that the appropriate penalty in this matter is $75,000. ORDERS 65 I make the following orders: 1. The defendant is convicted of an offence alleged under s15(1) of the Occupational Health and Safety Act, 1983. 2. The defendant is fined the sum of $75,000 with a moiety to the prosecutor.

WorkCover Authority of NSW (Insp Bourne) v Delta Pty Limited

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Judgment (25 paragraphs)

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Cases Cited (13)

Cited By (1)