1 Welcme t ur latest editin f GD NEWS that brings t yu infrmatin n new trends and issues that impact n the emplyment and insurance market in Australia. In this mnth ur feature article deals with a NSW Curt f Appeal decisin dealing with an accident n a cnstructin site that led t a denial f indemnity by a liability insurer. We can be cntacted at any time fr mre infrmatin n any f ur articles. Accidents n Cnstructin Sites- Breaches f Statutry Duties and denials f Indemnity by Insurers. Where des it all end up? Cnstructin sites are ften the surce f accidents. Persnal injury claims are regularly made against multiple parties engaged in cnstructin wrk. Breaches f Occupatinal Health and Safety Legislatin and ther statutry duties ften g hand in hand with an accident n a cnstructin site. When an insurer finds there has been a breach f a statutry duty it may decline t indemnify its insured arguing breaches f cnditins in the plicy that require the insured t take reasnable care and relying n exclusin clauses that abrgate respnsibility when there are breaches f statutry duties. A cmplicated situatin-yes. But hw des it all pan ut. The NSW Curt f Appeal has shed sme light n these issues in a recent decisin in Bksan Pty Ltd, Jaymay Cnstructins Pty Ltd v Wehbe, Elmir & GIO General and thers. Bilal Wehbe and Salah Eldin Elmir, were yung and inexperienced laburers wrking n a cnstructin site. Bksan Pty Ltd was the wner f the site and Jaymay Cnstructins Pty Ltd (a related cmpany) the supervisr. They were emplyees f M K Tiling, which sub-cntracted t prvide tiling wrk n three blcks f three-strey hme units being cnstructed n Bksan s site. Bth men were injured when the platfrm f a materials hist, n which they were travelling, cllapsed and fell t the grund. The hist was lifting them, tw ther men and a lad f tiles t the third flr f ne f the blcks. The men argued that Bksan, as ccupier f the site, and Jaymay, as supervisr f the cnstructin wrk, wed them a duty f care. They argued that Bksan had breached its duty by inadequately affixing the hist and Jaymay had breached its duty when its emplyee perated the hist whilst it was verladed. It was als argued that bth cmpanies breached varius statutry duties under the Cnstructin Safety Regulatins 1950 (NSW) and that cntributry negligence culd nt be argued against a breach f a statutry duty. The riginal District Curt Judge did nt accept this submissin but fund there was n cntributry negligence. Inside March 2006 Issue Page 1 Accidents n Cnstructin Sites Page 2 Wrkers Cmpensatin Insurer- Nt Liable fr Liability Assumed Under Cntract Page 3 Csts t be paid by Slicitr and Senir Cunsel Page 4 Illegal Wrkers and Illegal Cntracts Page 4 Reasnable Discipline? Page 5 NSW OH&S Snapsht The District Curt Judge held bth defendants were negligent but the injured were nt guilty f cntributry negligence. An appeal fllwed. The facts f the case depict a relatively cmmn situatin in the cnstructin industry. Nevertheless the judgment is a significant ne as it has clarified a number f issues that have trubled the legal prfessin since the intrductin f the Civil Liability Act in NSW. The judgment f the Curt f Appeal cnfirmed: The bviusness f a risk des nt bear upn the existence f a general duty wed by an ccupier. The bviusness f the risk and Patrick Sahyun s cnduct in requesting the defendants t get ff the platfrm are relevant t the reasnableness f the defendants respnse t the risk invlved. These matters, hwever, d nt detract frm the defendants duty t the plaintiffs. Bksan, as ccupier f private land, and Jaymay, as emplyer, had a cntinuing duty f care t the plaintiffs. This duty was breached when Bksan failed t adequately affix the hist and when Patrick Sahyun, as emplyee f Jaymay, activated the hist while the plaintiffs were n it. The plaintiffs actins in getting n the lift and disregarding a specific directin by Patrick Sahyun were flhardy. The trial judge erred in determining that the plaintiffs were nt guilty f cntributry negligence. A prprtin f 15% respnsibility fr their wn cntributin t damages shuld be. We thank ur cntributrs David Newey David Cllinge Amanda Bnd Stephen Hdges Camern Cffe Gillis Delaney Lawyers Level 6, 179 Elizabeth Street, Sydney 2000 Australia T F
2 Page 2 attributed t the plaintiffs. This takes int accunt the fact that the mst pwerful causative factrs in the plaintiffs injuries were the negligence f Patrick Sahyun in activating the lift and the negligence f Bksan in nt apprpriately affixing the hist. That since 6 December 2002 in NSW, irrespective f hw a claim is frmulated, if in substance it is a claim fr damages fr harm resulting frm negligence, a defence f cntributry negligence may be raised t that claim even if it is based n a breach f statutry duty. Cntributry negligence is nly available as a defence t a breach f statutry duty claim in NSW where the cause f actin accrues after 6 December Quay Slutins Insurance issues als trubled the Curt f Appeal. In the prceedings in the District Curt the Level defendants 6, had sued their liability insurer wh had declined t indemnify bth defendants fr the claims. 179 Elizabeth Street, Sydney 2000 GIO General the liability insurer denied that it was liable t indemnify Bksan and Jaymay, jint insureds n the grund that each had failed Australia t cmply with General Cnditin 2 and General Exclusin 3 f the insurance plicy. T Cnditin 2 f the plicy prvided Yu must take all reasnable care t maintain the premises, F +61 structures, fixtures, 1100 fittings, furnishings, appliances, machinery, implements and plant in sund cnditin. Yu must take all reasnable E care fr the safety f the Prperty Insured and t avid and minimise lss f r damage t prperty r injury t persns. Yu must als ensure that nly cmpetent emplyees are emplyed and that yu and they cmply with all statutry bligatins, by-laws, regulatins, public authrity requirements and safety requirements. Exclusin 3 prvided the insurer was nt liable fr Lss r damage r liability caused by r as a result f yur failure t cmply with any relevant statutry bligatins, by-laws, regulatins, public authrity requirements r safety requirements. The Trial Judge held that Bksan had nt breached these cnditins and was, therefre, entitled t be indemnified hwever it was fund that Jaymay had nt cmplied with General Cnditin 2 and General Exclusin 3 and was, therefre, nt entitled t any indemnity. Effectively the judge fund the wrds Yu in the general cnditin included emplyees f the insured by virtue f definitins in the plicy and therefre cnduct by the emplyee which culd be seen t amunt t a breach f the cnditin wuld be result in a breach f the cnditin by Jaymay. These finding were challenged in the appeal. The insurers accepted that an emplyer s vicarius liability t a third party fr the negligence f an emplyee is nt relevant t the bligatin f an insured. Thus, the fact that Jaymay s emplyee, Patrick Sahyun, was negligent did nt establish a breach f General Cnditin 2 by Jaymay. The insurers als accepted that General Cnditin 2 wuld nly nt be satisfied if the cnduct f Bksan and Jaymay were such that it amunted t a deliberate decisin t expse persns t a risk f injury, r recklessness n their part. An argument that Bksan had breached cnditin 2 thrugh the actins f Jamay s emplyee was als rejected and fund there was n basis n which it can be said that Bksan s cnduct amunted t a deliberate decisin t expse persns t a risk f injury r recklessness. The Curt f Appeal als held while Patrick Sahyun was an insured fr the purpses f the Public and Prducts Liability Sectin f the plicy, he was an insured n the basis that a separate Public and Prducts Liability Plicy is deemed t have been issued t him. His cnduct affects nly his rights under that deemed plicy; it des nt affect the rights f the ther insureds, such as Jaymay, under the plicies deemed t have been issued t each f them. The Curt f Appeal held the riginal Judge erred in attributing the cnduct f Patrick Sahyun t Jaymay. The Curt f Appeal als held that neither Bksan nr Jaymay breached any statutry regulatins and that the exclusin clause in the plicy did nt impact. Effectively the Curt f Appeal determined that bth Bksan and Jaymay were entitled t be indemnified by their liability insurer. Significantly the curt als cnfirmed that a breach f the NSW Occupatinal Health and Safety Act did nt trigger the exclusin clause fr the insurer as that Act specifically precludes the insurer frm relying n the breach as the Act prvides that any breach f the Act des nt cnfer a right f actin in any civil prceedings in respect f any cntraventin r a defence t an actin in any civil prceedings r as therwise affecting a right f actin in any civil prceedings. A cmplicated battle with many twists and turns but an interesting result. One hpes that the next cnstructin f three blcks f threestrey hme units des nt result in the same minefield f litigatin and disputes n the applicatin f the law in NSW that tw yung and inexperienced laburers wrking n a cnstructin site experienced when they were injured. Wrkers Cmpensatin Insurers are Nt Liable fr Liability Assumed Under Cntract. The High Curt f Australia has recently rejected an applicatin fr special leave t appeal by Multiplex Cnstructins and in ding s declined t disturb the decisin f the New Suth Wales Curt f Appeal in Multiplex Cnstructins Pty Ltd v Irving and rs that a wrkers cmpensatin plicy will nt respnd t damages fr breach f cntract. Stuart Irving was emplyed by a cmpany nw knwn as Canal Building wh were subcntractrs n a site t Multiplex. Irving was injured
3 Page 3 and cmmenced prceedings against Multiplex wh crss-claimed against Canal Building alleging negligence and breach f cntract. This is cmmn in New Suth Wales where stringent threshlds in claims against emplyers ften result in injured wrkers lking t the head cntractr fr damages. Canal Building sught cver fr the claim frm their wrkers cmpensatin insurer Ryal & Sun Alliance. The Curt fund bth Multiplex and Canal Building were negligent. The cntract between Multiplex and Canal Building cntained an indemnity prvisin s the Curt fund that Canal Building was liable t indemnify Multiplex fr the entirety f Irving's judgment. It was held the wrkers cmpensatin plicy did nt respnd t the claim fr breach f cntract. Effectively Canal Building was uninsured fr half f the judgment. The decisin in Multiplex was shrtly fllwed by the Curt f Appeal decisin f Grdian Runff Ltd v Heyday Grup Pty Ltd and resulted in a similar utcme. Quay Slutins Level 6, The decisins f Multiplex and Grdian Runff are f majr significance. Wrkers cmpensatin insurers will be liable fr a claim brught by an emplyee t the extent that the emplyer was negligent. Any additinal liability flwing frm 179 the Elizabeth assumptin Street, f liability under cntract will nt be cvered by the insurer. This additinal liability may r may nt be cvered by the subcntractr's Sydney 2000 liability plicy depending n the terms f the exclusin clauses in the liability plicy. Obviusly this may create a significant financial Australia liability fr the sub-cntractr. T This ptential lack f insurance cver fr the subcntractr in turn creates prblems fr the head F +61 cntractr if 1100 the subcntractr des nt have the funds t satisfy the indemnity. Wrkers cmpensatin plicies will nt cver liability arising frm a cntracted liability under an E indemnity prvisin in the sub-cntract. Will a head cntractr rely n the financial capacity f a sub-cntractr t payut n a liability assumed under cntract r better still prefer t ensure the sub-cntractr has insurance t meet the claim? The bvius answer is that insurance shuld be available and head cntractrs need t ensure that the liability insurance plicy f the sub-cntractr:- has been taken ut fr the prject and/r will cver the prject; is nt restricted in any way by limiting the plicy t cnstructin wrks f a specified value unless the value exceeds the relevant value f the wrks; cntain extensins t include cntractual liability assumed by the sub-cntractr including indemnity prvisins that cver claims arising in cnnectin with injuries t emplyees f the subcntractr; des nt include an exclusin that cntractual liability assumed by the sub-cntractr is nt cvered where the claim relates t r is cnnected with an injury t the sub-cntractr's emplyees; has been taken ut in the jint names f the sub-cntractr and head cntractr and ther parties where this is specified in the subcntract; extends cver t the sub-cntractrs'sub-cntractrs. Failure t ensure that the sub-cntractr's liability insurance is sufficient may lead t a lss brne by the head cntractr - if the subcntractr cannt pay. Csts t be paid by Slicitr and Senir Cunsel In what is an minus decisin fr the legal prfessin, the New Suth Wales Curt f Appeal has fr the first time rdered that a slicitr and senir cunsel indemnify their client pursuant t sectin 198M f the Legal Prfessin Act 1987 fr the csts arising ut f an unsuccessful applicatin fr leave t appeal (Eurbdalla Shire Cuncil v Wells). Mrs Aldridge was injured when a bench n which she was sitting cllapsed. The bench was in a park ccupied by Eurbdalla Shire Cuncil. Mrs Aldrige sued the Cuncil fr negligence. At trial Gldring DCJ held that the Cuncil had nt been negligent. Further, it was fund that Mrs Aldridge had nt satisfied the requirements f sectin 16 f the Civil Liability Act 2002 as she had nt established that the severity f her lss was at least 15% f a mst extreme case. Therefre, even if the Cuncil had been negligent the nly damages were ut-f-pcket expenses which were in the vicinity f $1, Mrs Aldrige applied fr leave t appeal t the Curt f Appeal. The applicatin fr leave t appeal was unsuccessful. As a cnsequence f an earlier Calderbank ffer by the Cuncil csts were rdered t be paid n an indemnity basis by the claimant. Mrs Aldridge is a 55 year ld unemplyed Abriginal wman wh had nt wrked fr a number f years. With n prspects f recvering csts frm Mrs Aldridge the Cuncil lked t her legal representatives. Justice Ipp was nt satisfied that the claim had reasnable prspects. He stated: "There is n entitlement t legal representatin in such cases. It is a matter fr the client t determine whether t pursue the claim r defence withut such services." In Justice Ipp's pinin the slicitr and senir cunsel were reckless, in the light f s 198M, in cntinuing t prsecute an appeal n Mrs Aldridge's behalf. The Curt shwed n hesitatin in making a persnal csts rders against the slicitr and senir cunsel even thugh there was n suggestin that the claim was fraudulent r vexatius. A decisin t appeal an unsuccessful claim presents risks t the claimant's slicitrs and cunsel as they may well be liable t pay the csts which wuld usually be paid by their unsuccessful client.
4 Quay News Illegal Wrkers and Illegal cntracts - starting t mean smething? Page 4 In years gne by, the fact that a wrker was wrking illegally did nt seem t ever prevent him r her recvering cmpensatin payments fr injury. Tw recent cases in the Wrkers Cmpensatin Cmmissin suggest that a harder line might nw be the nrm. In Singh v Taj (Sydney) Pty Limited  NSWWCCPD 7 a wrker was injured at a time when his visa allwed him t wrk in Australia. He received lump sum amunts, and was being paid (vluntary) nging weekly payments. Sme time later his visa status changed. The impact f sectin 235 f the Migratin Act 1958 meant that the wrker was nw prhibited frm wrking in Australia and it wuld be a criminal ffence fr him t d s (r fr an emplyer t knwingly emply him). After becming aware f the status change, the insurer stpped weekly payments. At Arbitratin it was held that as the wrker was currently prevented frm legally engaging in emplyment the amunt that he 'wuld have been earning but fr injury'(under sectin 40) must be zer. Hence, there was n cmpensable lss. An appeal t the Cmmissin cnfirmed the Arbitratr's decisin. In Zhang v Hu t/as Eden Furniture  NSWSCCPD 15 the wrker was injured at a furniture factry. At the time, his turist visa - which did nt allw him t wrk in Australia - had expired. The wrker claimed weekly cmpensatin whilst in immigratin detentin. Ntwithstanding his 'illegal'status an Arbitratr f the Cmmissin, relying n the NSW Curt f Appeal decisin f Nnferral v Taufia (1998) NSWLR 312, fund there t be a valid cntract f emplyment. On appeal, the Cmmissin said this was wrng. The Cmmissin thught that the relevant prvisin f the Migratin Act was better interpreted by the Queensland Curt f Appeal in Australian Meat Hldings Pty Limited v Kazi (2004) QCA 147. This was said t be a binding authrity fr the prpsitin that the Migratin Act rendered any cntract f emplyment with an 'unlawful nn-citizen'invalid and unenfrceable. The wrker was such a persn - hence the cntract was illegal. Having decided this, the Cmmissin then apprved f the use f sectin 24 f the Wrkers Cmpensatin Act 1987 in the circumstances t treat the illegal cntract as valid. N indicatin was given as t what factrs are relevant fr the exercise f this discretin. The scpe then fr 'illegals't recver cmpensatin is narrwing - and emplyers and insurers shuld be alert t its impact. In the NSW Wrkers Cmpensatin scheme it is t be hped that a liberal use f the discretin in sectin 24 des nt see the restrictins rendered meaningless. Reasnable Discipline? In a recent decisin in Department f Educatin & Training - V - Sinclair the NSW Curt f Appeal adpted a sensible and practical apprach t the questin f what cnstitutes reasnable actins by an emplyer in wrkplace psychlgical/psychiatric injury matters. The Curt has decided that in determining whether a valid defence exists, the ttality f the actins f the emplyer shuld be lked at in assessing whether they are reasnable rather than small individual actins which, in islatin may be cnsidered unreasnable. In NSW in wrkers cmpensatin claims fr psychiatric r psychlgical injury the Wrkers Cmpensatin Cmmissin must decide whether injuries were sustained in the curse f emplyment, and whether the emplyment was a substantial cntributing factr t the injury t the extent that the emplyment cntributed t the injury, and whether that cntributin was whlly r predminantly caused by reasnable actin taken with respect t discipline. There must be a causal cnnectin between the injury and the emplyment and reasnable discipline will nt give rise t a valid claim. Sinclair's case invlved a psychiatric injury claim f a teacher disciplined fr a relatinship with a student. The matter was riginally determined in the Wrkers Cmpensatin Cmmissin, wherein Arbitratr McManamey fund in favur f the wrker and cncluded the Department f Educatin were unreasnable in their disciplinary actin. An appeal was ldged and the Curt f Appeal has determined t refer the case back t the Wrkers Cmpensatin Cmmissin t rehear the case. The wrker had claimed that his injury was caused by specific actins f the emplyer whereas the emplyer argued that when the emplyer's actins were viewed as a whle they were reasnable and any injury suffered was the result f the verall actins rather than ne r tw specific parts. The real errr in the decisin was the apprach adpted by the Arbitratr t examine the nminated specific parts f the verall actin withut determining whether the injury was caused by thse actins r rather the ttality f the actins which may have been reasnable. His Hnur Justice Spiegelman CJ cmmented: "Such actins usually invlve a series f steps which cumulatively can have psychlgical effects. Mre ften than nt it will nt be pssible t islate the effect f a single step. In such a cntext the whle r predminant cause is the entirety f the cnduct with respect t, relevantly, discipline. In my pinin, a curse f cnduct may still be reasnable actin, even if particular steps are nt. " The Curt f Appeal fund that t determine the reasnableness f the actin it was necessary t decide whether the whle prcess was, ntwithstanding the blemishes, reasnable actin". The Wrkers Cmpensatin Cmmissin had nt determined whether the whle r predminant cause was the entirety f the disciplinary prcess.
5 Quay News The Curt f Appeal fund that t determine the reasnableness f the actin it was necessary t decide whether the whle prcess was, ntwithstanding the blemishes, reasnable actin". The Wrkers Cmpensatin Cmmissin had nt determined whether the whle r predminant cause was the entirety f the disciplinary prcess. In relatin t a submissin that earlier vluntary payments f wrkers cmpensatin wuld bind the emplyer, the Curt cmmented that althugh sme small weight culd be placed n an admissin in cases invlving simple questins f fact, it was nt apprpriate t develp that principle t cases as cmplex as this. The Curt f Appeal's cmments in relatin t reasnable actins by an emplyer bring a degree f cmmn sense t the interpretatin f psychlgical and psychiatric claims by the Wrkers Cmpensatin Cmmissin. An apprach whereby the ttality f the actins f the emplyer are cnsidered rather than small islated unreasnable actins brings a breath f fresh air t psychlgical/psychiatric cases. The Curt f Appeal als nted that a case shuld nt be remitted t the Wrkers Cmpensatin Cmmissin unless the errr has ccasined sme substantial wrng r miscarriage. What will the Wrkers Cmpensatin Cmmissin decide when it rehears this case? We will see. Stay tuned fr the utcme. Yung Wrkers Injured On First Day At Wrk NSW OH&S Snapsht Tw wrkers aged 20 and 17 years f age were severely injured n their first day f wrk at the Hunter Galvanising Pty Limited ("Hunter Galvanising") galvanising plant. As a result f the injuries the WrkCver Authrity f New Suth Wales ("WrkCver") brught charges against Hunter Galvanising and its directr, Mr Kerry Barthlmew. On the day f the accident the tw emplyees arrived at wrk each received apprximately 30 minutes f inductin frm Mr Hales, the prductin manager. The inductin included a viewing f the factry flr, a tur f its layut and a warning abut the dangerus areas within the factry. The tw emplyees were initially assigned a cleaning task by Mr Hales, hwever after that was cmplete Mr Barthlmew asked the tw emplyees t undertake a prcess knwn as "jigging", which in essence meant preparing metal prducts fr galvanisatin. The tw emplyees were given brief instructins by Mr Barthlmew as hw t crrectly prepare metal fr galvanisatin. The tw emplyees then set abut arranging a number f metal bars which weighed apprximately 4.3 kgs each fr galvanisatin. As they were aligning the metal bars a steel head frame, weighing apprximately ne tnne lcated 2.3 metres abve flr rtated ut f its supprting cradles and fell t the flr striking bth emplyees. As a result f the fall ne emplyee suffered a fractured skull and the ther emplyee was struck in the leg and suffered bruising as well as swelling t the back f his calf muscle n his right leg. Directly after the incident Mr Barthlmew engaged D Hunt & Assciates Pty Limited fr the purpse f inspecting the galvanising equipment invlved in the accident. The galvanising equipment had been fashined by Mr Barthlmew n designs adpted frm ther galvanising plants in Australia and verseas. The reprt indicated that the head frame wuld becme unstable frm its cradle if ne side was weighed dwn mre than the ther. Since the accident the galvanising equipment at Hunter Galvanising had been mdified t prevent the head unit sliding ff its cradle and injuring further emplyees. In reaching its cnclusin the Curt viewed the accident as mst serius given the fact that bth emplyees were nly very yung and withut experience and were given instructins t use heavy equipment and machinery in the factry envirnment n their first day f wrk. The Curt was in disbelief that they had been at wrk n mre than a few hurs and had been asked t engage in the prcess f galvanising steel prducts. The Curt said "Given their yuth and inexperience it was f critical imprtance that they be clsely supervised and receive detailed instructins and infrmatin abut tasks that they were directed t perfrm". Bth Mr Barthlmew and Hunter Galvanising entered a plea f guilty at the first pssible instance and neither party had any prir cnvictins. Since the accident the Curt tk int cnsideratin the fact that Hunter Galvanising had adpted a stringent and detailed ccupatinal health and safety management system, in which a buddy system was adpted and full supervisin was prvided t junir emplyees at all times. Further t this, the Curt nted Hunter Galvanising and Mr Barthlmew had paid particular attentin t the rehabilitatin and retraining f the tw injured wrkers and was pleased t see bth emplyees had returned t wrk. The Curt ultimately fined Mr Barthlmew and Hunter Galvanising $7, and $100, respectively. Fund Guilty, But Curts Discretin Used and N Cnvictin Recrded Page 5 In a recent case in the Industrial Curt f New Suth Wales decisin, Kwik-Seal Pty Limited ("Kwik-Seal") and its directr Mr David Seal were charged under the Occupatinal Health & Safety Act, 2000 fr failing t prvide safe systems f wrk, emergency prceedings and training t their emplyees. The charges arse ut f an incident in which Mr Seal's sn in law, Mr Michael Wdbridge was engaged as a sub-cntractr by Kwik-Seal t undertake the sealing f three industrial sized water tanks lcated at the Park Bay Regis building n Sydney's Park Street. On the day f the incident Mr Wdbridge was assisting Mr Angus O'Brien. On that day Mr Wdbridge and Mr O'Brien were t prime the walls f the water strage tanks with a nn-txic, nn-slvent primer. The incident ccurred as a result f Mr Wdbridge entering the water hlding tank and attending t the applicatin f a primer, which was
6 Page 6 nt the riginal nn-txic, nn-slvent prduct he had initially been instructed t use. Mr Wdbridge attended t the applicatin f a different primer withut the use f the breathing apparatus r safety equipment he had been trained and instructed t use. Mr Wdbridge entered the water hlding tank withut infrming Mr O'Brien. When Mr O'Brien went t enter the water tank he nticed Mr Wdbridge had cllapsed n the flr f the tank. As a result f the incident Mr Wdbridge did nt sustain any permanent injury. David Seal represented himself befre the Industrial Curt f New Suth Wales and entered a plea f guilty at the first pssible incidence. Mr Seal indicated t the Judge the deep remrse and significant anguish he had undergne as a result f the ptential life threatening situatin he had placed his sn in law, Mr Wdbridge in. Mr Seal frankly accepted the full respnsibility fr the lack f attentin t detail t the safety f his emplyee, that had ultimately lead t the incident taking place and simply said he had "stuffed up". As a result f the incident he had utlaid ver $30,000 wrth f Cnfined Space Safety Equipment including man dwn alarms, full 3 t 1 recvery harnesses, crrect lifting equipment, tw direct feed air breathing apparatus, self cntained breather fr recvery f man dwn and each vehicle Quay Slutins supplied t cntractrs nw cntained chemical graded air filter respiratrs. Level 6, Mr Seal related t the Curt that the incident invlving Mr Wdbridge had severe cnsequences 179 t Elizabeth bth his business Street, and persnal life. As a result f the incident Mr Seal had experienced heart cmplicatins, stress, anxiety, panic attacks Sydney and 2000 was unable t face the wrld n a day t day basis further t this he had becme aggressive and angry bth at hme and in the wrkplace. Financially, since the accident Mr Australia Seal's business has depleted significantly and he n lnger was a directr f the business but instead a cnsultant fr a larger sealant cmpany. He and his wife were bth new in cnsiderable debt having a mrtgage f sme $960,000. T F Ultimately the Industrial Relatins Curt cnsidered that the injuries sustained t Mr Wdberry E were nt substantial and that bth Kwik-Seal and Mr Seal did nt have any prir cnvictins and given the remrse and steps taken by Mr Seal t rectify the prblem it was unlikely Mr Seal r the cmpany wuld re-ffend in the future. Ultimately the Curt cncluded that the ffence had been prved but exercised its discretin under Sectin 10 f the Crimes Sentencing Prcedure Act 1999 nt t recrd a cnvictin. There was n fine impsed. Yuth Wrkers Safety f Paramunt Cncern The Department f Juvenile Justice (the "Department") perated Karing Juvenile Justice Centre ("Karing") at Karing. The purpse f Karing was t prvide educatinal services t juvenile detainees wh were in custdy and had been charged with r cnvicted f criminal ffences. In 2002 the Department emplyed Mr Dare, Mr Menser, Mrs Schmitzer, Mr Ellen, Mr Hawthrne and Mr Squire as yuth fficers at Karing. The Department was prsecuted by the WrkCver Authrity f New Suth Wales fr failing t ensure the health, safety and wellbeing f its emplyees in relatin t tw incidents which ccurred n 20 Octber 2002 and 15 Nvember 2002 in which yuth fficers at Karing were threatened and physically assaulted by detainees. On 20 Octber 2002, Mr Dare, Mr Menser, Mr Hawthrne and Mr Squire were threatened by three detainees with brken mp handles and a lng bladed wd chisel. As a result f the assault Mr Menser and Mr Hawthrne stated in interviews they sustained psychlgical injuries and subsequently had time ff wrk. On 15 Nvember 2002, Mr Ellen and Mr Dare were assaulted by three detainees. The incident tk place when Mrs Schmitzer was asked by ne f the detainees fr a glass f cld water frm the staff rm. As Mrs Schmitzer left the rm the detainees tied the dr shut with a wash bag t prevent the ther yuth fficers entering the area they were in. Fllwing this ne f the detainees wh was in the pssessin f a screwdriver, threatened t kill Mr Dare and lunged at him. As a result f the lunge Mr Dare was struck in the right hand as he deflected the blw. Mr Dare was then struck with a brm handle by a detainee acrss the back f the head, shulder and lwer back. As a result f the incident Mr Dare suffered laceratin t his right hand, bruising and stiffness in the left shulder as well as headaches, flashbacks and difficulty sleeping. Fllwing the incident Mr Dare underwent cunselling and received treatment fr pst traumatic stress. When the matter prceeded befre the Industrial Curt f New Suth Wales it became apparent there were in place detailed educatinal prcesses and peratin prcedure manuals relating t the peratin f the Wdwrk Vcatinal Area as well as educatinal prgrams thrugh which emplyers were trained t deal with ptential vlatile situatins. These prcedure included detainee searches upn leaving the Wdwrk Vcatinal Area and a visual check f the shadw bard upn which all the tls were kept. This wuld enable the yuth fficers t determine whether any tls were missing fllwing wrk in the Wdwrk Vcatinal Area. As a result f the tw incidents f 2002 Karing was issued with a number f Imprvement Ntices. The Department cmplied with the Imprvement Ntices and implemented new systems f training and new safety systems fr its yuth wrkers. These included reducing the number f tls in the Wdwrk Vcatinal Area, installing duble lcks n entrances t the wdwrk strerm and lck dwn prcedures in circumstances where tls were missing frm the tlshed area. Further t this, a New Tls As Weapns Prgram was develped and all staff were required t undertake training. Finally, metal detectrs were implemented in searches f detainee's rms in the hpe f btaining cncealed weapns. In determining the crrect manner t deal with the Department, the Curt nted it was paramunt t cnsider the nature and quality f the
7 Page 7 ffence, that being its bjective seriusness and further subjective factrs. Ultimately the Curt cncluded the Department had n prir cnvictins befre Octber 2002, and subsequently the Department had put in place a cmprehensive system t ensure the health and safety f the yuth wrkers and had becme cnscius f the risks detainees may create in the pssessin f tls as well as items such as mp and brm handles. Further t this, the Department had implemented a stringent educatin prgram fr all its emplyees t undertake and finally cnsidered that the envirnment the Department was dealing in was ne in which a balance f the welfare f the detainee had t be finely weighed against the health and safety f the staff. Ntwithstanding a ttal fine f $165,000 was impsed with $70,000 being prprtined t the 20 Octber 2002 ffence and $95,000 t the 15 Nvember 2002 ffence. The Imprtance Of Actin Taken Directly After OH&S Incident Mr Brian Edwin Gss, an experienced electrical linesman, was fatally injured while wrking at a prperty lcated n Cnamble Rad, Gilgandra New Suth Wales while in the emply f Cuntry Energy. As a result f the fatality, Cuntry Energy was charged by the WrkCver Authrity f New Suth Wales fr failing t prvide and maintain a safe system f wrk in relatin t electrical line wrk, failing t ensure that all electrical lines were prperly examined, tested, de-energised and islated prir t emplyees cmmencing wrk. The incident ccurred as a result f Mr Gss and Mr James Wd carrying ut wrk n a 22 kilwatt high vltage circuit lcated n Cnamble Rad, Gilgandra. Mr Gss and Mr Wd attended t what they believed was the crrect circuit bx and placed the circuit breaker n the switchbard n the ff buttn and lck tagged the circuit accrdingly. Fllwing this Mr Wd and Mr Gss attended t wrk n the pwer lines. As Mr Gss began wrking n the pwer lines, Mr Gss was fatally electrcuted. Cuntry Energy plead guilty at the first pssible instance, and it became apparent befre the Curt, Cuntry Energy had in the past been the subject f six cnvictins resulting in fines ranging frm $2,000 t $160,000 althugh these cnvictins had taken place under different cmpany names. Fllwing the incident, Cuntry Energy immediately issued an injury advice t all emplyees cncerning the incident and reinfrced the need t fllw the stringent electrical safety rules prvided by their ccupatinal health and safety manual and submitted further dcumentatin t thse guidelines. Further t this, Cuntry Energy adpted new prcedures and simplified the safety prcedure, in which emplyees were trained t deal with rural pwer ples. In reaching its cnclusin, the Industrial Curt f New Suth Wales remarked that Cuntry Energy had an extensive and detailed ccupatinal health and safety system which filtrated thrugh the whle f the cmpany. The Curt nted that there was a methd set dwn fr testing live wires and there were instructin as t hw that was t be undertaken t ensure that the lines were de-energised, but fr sme reasn that apparently did nt ccur n the day Mr Gss was fatally injured. Cuntry Energy was fined $145,000. Warning. The summaries in this review d nt seek t express a view n the crrectness r therwise f any curt judgment. This publicatin shuld nt be treated as prviding any definitive advice n the law. It is recmmended that readers seek specific advice in relatin t any legal matter they are handling.
8 January Page Gillis Delaney Lawyers specialise in the prvisin f advice and legal services t businesses that perate in Australia. We can trace ur rts back t The name Gillis Delaney has been knwn in the legal industry fr ver 40 years. We deliver business slutins t individuals, small, medium and large enterprises, private and publicly listed cmpanies and Gvernment agencies. Our clients tell us that we prvide practical cmmercial advice. Fr them, preventin is better than cure, and we strive t identify issues befre they becme prblems. Early interventin, practive management and negtiated utcmes frm the crnerstnes f ur service. The changing needs f ur clients are met thrugh creative and innvative slutins - all delivered cst effectively. We make it easier fr ur clients t face challenges and t ensure they are 'fit fr business'. We lk at issues frm yur pint f view. Yur input is fundamental t us delivering an efficient, reliable and ethical legal service. We like t knw yur business, and take the time t visit yur peratin and develp an in depth understanding f yur needs. Gillis Delaney is led by partners wh are recgnised by clients and ther lawyers as experts in their fields. Our service is persnal and 'hands n'. Our clients receive the full benefit f ur ability, knwledge and effrt in ur specialist areas f expertise. We prvide superir and distinctive services thrugh a team apprach, drawing the necessary expertise frm ur specialists. Our mix f prfessinals ensures that clients enjy high level partner cntact at all times. We are cmmitted t delivering a quality legal service in a manner which will exceed yur expectatins and we maintain a fcus n business and cmmercial awareness whilst delivering excellence in legal advice. We have a prven track recrd f delivering cmmercially fcused advice. Whether it be in advisry services, dispute reslutin, cmmercial dcumentatin r educatin and training, a partnership with Gillis Delaney ffers: practical innvative advice timely services expert insight accessibility cst effective slutins Yu can cntact Gillis Delaney Lawyers n and speak t David Newey r t Why nt visit ur website at
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