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WORKER'S FIRST DAY RESULTS IN SERIOUS INJURY
the case ...
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The Case
Bellard Pty Ltd v Perry (2015)
Elite Concrete Pumping Pty Ltd (Elite Concrete) is a concrete work
contractor. Elite Concrete supplied a 17 years old work to the building
company Bellard Pty Ltd to work on one of their building sites in South
Australia. On the worker’s first day of work, 26 September 2011, he
fell backwards while pouring concrete. The worker fell 8 meters down an
exposed lift shaft that was ‘loosely’ covered, injuring his back, leg,
head, eyes and mouth in the process (which has since been repeated).
The Verdict
Bellard was found to have breached section 23(a) of the Occupational
Health, Safety and Welfare Act 1986 (SA) for failing to ensure, so far
as reasonably practicable, that the workplace was maintained in a safe
condition. The Court found that Bellard breached the Act by not
securing the cover over the lift shaft or fencing the lift shaft from
access by workers on the building site.
Bellard was fined $125,000 and ordered to publish notices of remorse in
three Adelaide publications. The induction magistrate reduced the by
20% (to $100,000) due to Bellard’s early guilty plea. Bellard appealed
on the basis that:
- the starting point of $125,000 was excessive; and
- there was no direction provided as to which publications the
notices should be published in. This could create significant
variations in cost to Bellard, depending on the size and
distribution of the publications.
The South Australian Industrial Relations Court found that although
the starting point of the fine was appropriate due to the very serious
hazard of the unsecured lift shaft which made the Bellard building site
unsafe, the fee reduction of 20% was not sufficient considering that
“there was no proper evidentiary basis to reject Bellard’s submission of
genuine contrition’. Accordingly, Senior Judge Jennings increased the
discount of the fine to 30% ($87,500) and revoked the non-pecuniary
penalty of the publicity order.
The Lesson
When employers are fined for providing a “plainly unsafe” workplace, the
fine may be reduced if the employer shows genuine contrition. However,
you should always ensure that any health and safety risks are eliminated
or minimised, particularly when contractors, who are not as familiar
with the worksite as everyday workers, are onsite. One way to do this
would be to have written hazard identification and risk assessment
processes available on site.
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