IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE Case No Y MELBOURNE BUDGET ROOFING PTY LTD MATTHEW CHAPMAN CHRISTIAN McCALMAN --- S GARNETT

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1 !Undefined Bookmark, I IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE Case No Y 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 For Mr Chapman & Mr McCalman Mr Wright Mr Galbally QC

2 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 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

3 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

4 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, 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 workplace In DPP v Amcor Packaging Australia P/L 2 the Court of Appeal said; Section 21 of the Occupational Health and Safety Act 1958 is directed to ensuring that 1 See comments of Judge Villeneuve-Smith in R v Simsmetal Ltd Unreported County Court 9 March [2005] VSCA 219 at Para Sentence

5 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 Ltd 3 ; 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 [2006] VSCA 181 at Para Sentence

6 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, Sentence