Delta Contractors (Aust) Pty Ltd & Anor v Guilfoyle [2026] QDC 14

DISTRICT COURT OF QUEENSLAND CITATION: Delta Contractors (Aust) Pty Ltd & Anor v Guilfoyle [2026] QDC 14 PARTIES: DELTA CONTRACTORS (AUST) PTY LTD (first appellant) and BILL DIAKOGEORGIOU (second appellant) v AARON JOHN GUILFOYLE (respondent) FILE NOS: BD 2300 and 2301 of 2025 DIVISION: Appellate PROCEEDING: Appeal DELIVERED ON: 23 February 2026 DELIVERED AT: Brisbane HEARING DATE: 5 February 2026 JUDGE: Rosengren DCJ ORDERS: 1. The appeals are dismissed. 2. The appellants pay the respondent’s costs of the appeals fixed in the sum of $2,100. CATCHWORDS: CRIMINAL LAW – s 222 APPEAL – APPEAL AGAINST CONVICTION – where the company appellant was engaged in constructing a residential dwelling as principal contractor – where the individual appellant was the director of the company – where an electrical sub-contractor sat on the edge of a suspended slab on the first floor and fell off onto the ground sustaining a serious injury – where the company appellant had a duty under section 19(1) of the Work Health and Safety Act 2011 to ensure the health and safety of workers – where the director of the company had a duty under section 27 of the Work Health and Safety Act 2011 to exercise due diligence to -- 1 of 12 -- 2 ensure that the company complied with its duty – where the appellants were each convicted of an offence under section 32 of the Work Health and Safety Act 2011- whether the verdicts of guilty were unreasonable and not supported by the evidence – whether the magistrate failed to have proper regard to section 18 of the Work Health and Safety Act 2011. Work Health and Safety Act 2011 (Qld) ss 3, 16, 18, 19, 27, 32 Work Health and Safety Regulation 2011 (Qld) ss 291, 292, 299, 306C, 309 Justices Act 1886 (Qld) ss 222, 223, 225, 226 Fox v Percy [2003] HCA 22 Bode v Commissioner of Police [2018] QCA 186 Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 Dunlop Rubber Australia Limited v Buckley 87 CLR 313 Lacey v Attorney-General of Queensland (2011) 242 CLR 573 Latoudis v Casey (1990) 170 CLR 534 Liang O’Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 Mitchell v North British Rubber Co (1945) SC (J) 69 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 Teelow v Commissioner of Police [2009] QCA 84 Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 Workcover Authority of NSW (Inspector Glass) v Kellogg (Aust) (1999) 101 IR 239 COUNSEL: G Webber for the appellants S J Cartledge for the respondent SOLICITORS: O’Shea and Partners Lawyers for the appellants Office of the Workplace Health and Safety Prosecutor for the respondent [1] Delta Contractors (Aust) Pty Ltd (‘Delta’) conducted a business of undertaking residential construction work and Mr Diakogeorgiou (‘Mr Diakos’) was its sole director. In 2019, Delta was the principal contractor for the construction of a residential dwelling at 110 Brisbane Corso, Fairfield (‘the site’). Mr Diakos was the site manager. Delta engaged various subcontractors, including Scanlan and Sims Pty Ltd (‘Scanlan and Sims’) to undertake electrical work at the site. Michael Scanlan worked for Scanlan and Sims. -- 2 of 12 -- 3 [2] On 29 May 2019, a few subcontractors, including Michael Scanlan were working on the suspended slab of the first floor of the construction at the site (‘the suspended slab’). Mr Diakos was present at the site. Mr Scanlan fell from the edge of the suspended slab, sustaining serious injuries rendering him a paraplegic. [3] Delta and Mr Diakos were each charged with failing to comply with their health and safety duties under ss 19 and 27 of the Work Health and Safety Act 2011 (Qld) (‘the Act’) respectively, contrary to s 32 of the Act, in circumstances where the failures exposed an individual to a risk of death or serious injury [4] The particulars of the breach with respect to Delta involved allowing contractors to work up on the suspended slab without it having edge protection, scaffolding or a catch platform. In relation to Mr Diakos, it was alleged that as the director of Delta, the exercise of due diligence on his part required him to ensure that workers were directed not to work up on the suspended slab until one of these control measures had been installed. [5] Delta and Mr Diakos pleaded not guilty to the charges and the summary hearing took place on 26 April 2023. By written reasons and a decision dated 10 December 2024, the magistrate found them both guilty and they were sentenced on 22 July 2025. [6] There were 24 exhibits tendered. The witnesses who gave evidence were: (i) Mr Scanlan – electrician who was injured when he fell over the edge of the suspended slab; (ii) Rory Scanlan – electrician who was working on the suspended slab at the time of the fall; (iii) Frank Pimbilt – steel fixer who was working on the suspended slab at the time of the fall; (iv) Martin Bridgens – supplier of safety edge protection that was installed after the fall; (v) Malcolm Gouldstone – supplier of scaffolding that was installed after the fall; (vi) Noel Hayes – Principal Inspector, Construction, Workplace Health and Safety Queensland who attended the site on the day of the fall; and (vii) Graeme Hogan – Senior Investigator for Workplace Health and Safety Queensland who attended the site in the days following the fall. [7] The defendant participated in two interviews with investigators on 18 November 2024. These were also before the magistrate. [8] This is an appeal against conviction only. Nature of s 222 Appeals [9] The appeal is brought under Part 9 Division 1 of the Justices Act 1886 Qld (‘the Justices Act’). Section 222 provides that a defendant aggrieved by an order made by a justice in a summary way on a complaint for an offence, may appeal within one month after the date of the order to a District Court judge. [10] Section 223 of the Justices Act provides that the appeal is by way of rehearing on the evidence given in the proceeding before the magistrate to determine whether the -- 3 of 12 -- 4 convictions are the result of some legal, factual or discretionary error.1 Whilst this does not involve a rehearing of the evidence of witnesses, the court has the power to draw inferences from primary facts (including facts not disputed) and findings of fact.2 [11] In Fox v Percy3, Gleeson CJ, Gummow and Kirby JJ said at [25]: “Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses and should make due allowance in this respect’.” [12] In Bode v Commissioner of Police4, McMurdo JA confirmed that the task of an appellate court conducting a rehearing is as described by the High Court in Robinson Helicopter Company Inc v McDermott as follows: “A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”5 [13] Pursuant to s 225 of the Justices Act, the appellate court can confirm, set aside or vary an order or make any other order considered just. Legislative framework [14] Section 3 of Act provides that its main object is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces, including by protecting workers against harm to their safety through the elimination and minimisation of risks arising from work. The section goes on to provide that the overriding principle is that workers should, so far as is reasonably practicable, be given the highest level of protection against harm to their safety from hazards and risks arising from work.6 [15] The objects of the Act are achieved by imposing duties upon various persons who might be in a position to influence conduct at the workplace. These provisions are contained in Part 2 of the Act. [16] Division 5 of Part 2 of the Act creates offences and penalties applicable to persons who fail to comply with their health and safety duty. There are three categories of offences which vary in the level of maximum penalties commensurate with the seriousness of the breach. The offence, the subject of the present appeal, is a category 2 offence under s 32 of the Act, which carries fines but not imprisonment. In relation to both Delta and Mr Daikos, to prove an offence against s 32, the respondent was required to prove beyond reasonable doubt the following elements: 1 Lacey v Attorney-General of Queensland (2011) 242 CLR 573. 2 Teelow v Commissioner of Police [2009] QCA 84 at [3]–[4]. 3 [2003] HCA 22. 4 [2018] QCA 186. 5 (2016) 90 ALJR 679, 686–687. 6 Section 3(2) of the Act. -- 4 of 12 -- 5 (i) Delta/Mr Diakos had a health and safety duty; (ii) Delta/Mr Diakos failed to comply with that duty; and (iii) the failure by Delta/Mr Diakos exposed an individual to a risk of death or serious injury or illness.7 [17] It was only element (ii) that was in issue at the hearing. The respondent was required to prove beyond reasonable doubt that Delta/Mr Diakos failed to comply with their respective duties imposed by the Act. [18] Section 19 of the Act placed the primary duty on Delta, given that it was in a position to control or influence the way work was done on the site. Delta was required to ensure, so far as was reasonably practicable, the health and safety of workers at the site, by the provision of the specific matters, or the taking of the relevant steps listed in s 19(3) of the Act. These included the provision and maintenance of a work environment without risks to health and safety, and safe systems of work. [19] Reasonably practicable means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including – (i) the likelihood of the hazard or the risk concerned occurring; (ii) the degree of harm that might result from the hazard or the risk; (iii) what the person concerned knows, or ought reasonably to know, about the hazard or the risk; and ways of eliminating or minimising the risk; (iv) the availability and suitability of ways to eliminate or minimise the risk; and (v) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.8 [20] Risk extends to the mere possibility of danger and is not limited to actual danger.9 The likelihood of the hazard or risk occurring is not answered by reference to whether particular workers have knowledge of previous similar incidents. Rather, the test with respect to the likelihood of the risk eventuating, is objective and impersonal. The question is whether in the ordinary course of human affairs, danger may reasonably be anticipated from the use of the suspended slab with an unprotected edge, not only to the prudent, alert and skilled workers intent upon their task, but also to the careless, inattentive or foolish worker whose conduct may expose them to risk of injury or death.10 It may not always be possible to foresee various acts of inadvertence by workers, but Delta was required to conduct operations on the basis that such acts will occur and that they needed to be guarded against to the fullest extent practicable.11 [21] Of course, Delta’s statutory duty did not require it to take every possible step that could be taken to protect against all risks. Rather, it was required to take those steps that were reasonably practicable to achieve the provision of and maintenance of a safe working environment. The duty required Delta to have a proactive, structured and systematic 7 The offence does not include a fault element. 8 Section 18 of the Act. 9 Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252. 10 Mitchell v North British Rubber Co (1945) SC (J) 69 at 73; Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51]. 11 Dunlop Rubber Australia Limited v Buckley 87 CLR 313 at 320. -- 5 of 12 -- 6 approach to safety issues and risk management. The question is not whether Delta envisaged a particular danger, but rather whether it should have.12 Foreseeability of the risk to persons from the activity is an element of this question of knowledge. The question of what is reasonably practicable is a question of fact, depending on the circumstances of each case. [22] A separate duty was imposed on Mr Diakos pursuant to s 27 of the Act. As the director of Delta, he had a duty to exercise due diligence to ensure Delta met its work, health and safety obligations. This positive duty was ongoing and required Mr Diakos to be proactive in ensuring Delta complied with its duties and obligations under the Act. Section 27(5) contains a non-exhaustive list of steps Mr Diakos ws required to undertake to discharge his duties under this provision. This included ensuring that Delta had and implemented, processes for complying with any duty or obligation it had under the Act. Evidence as to the circumstances of the fall [23] In May 2018, Delta entered into a contract with a homeowner to build a multi-level house on the site for $695,000. The contract provided that Delta could subcontract any of the works, but that Delta would act as principal contractor for the purposes of the construction. Mr Diakos was the project manager. He was a qualified carpenter and joiner and held a tertiary qualification in construction management. He also had a construction safety card and had attended several safety courses over the years. [24] Scanlan and Sims were engaged by Delta as an electrical subcontractor on the site. This company was owned and operated by Michael Scanlan, who had significant experience working as an electrician in the construction industry. He employed his son, Rory who was also an experienced electrician. Scanlan and Sims had been regularly performing electrical subcontractor work for Delta for the previous 10 or so years. [25] By early July 2018, Delta was communicating with Mr Scanlan in relation to electrical works required to be carried out at the site. Mr Scanlan was emailed the plans for the site on 10 July 2018. [26] Given that the value of the construction works exceeded $250,000, there was a statutory requirement for Delta to prepare a written Work Health and Safety Management Plan (‘the Safety Plan’).13 This was completed and signed by Mr Diakos on 1 August 2018. It specifically dealt with the issue of falls. It provided that Delta and its subcontractors were required to manage the risks of persons falling from one level to another, if the fall was reasonably likely to cause injury. It went on to refer to the need for edge protection where work could not be undertaken on the ground.14 The Safety Plan also stated that Delta had a duty that each person carrying out work on the site was made aware of the content of the plan and the worker’s right to review it. It was Mr Scanlan’s evidence that he was not shown the plan. 15 He was cross-examined to the effect that it was not the usual procedure for a principal contractor to provide such documentation to a subcontractor and Mr Scanlan disagreed with this. [27] There was also a statutory requirement for Delta to prepare a Safe Work Method Statement (‘SWMS’). This is because the construction of the house was categorised as 12 Workcover Authority of NSW (Inspector Glass) v Kellogg (Aust) (1999) 101 IR 239. 13 Refer to ss 292 and 309 of the Work Health and Safety Regulation 2011 (Qld) (‘the Regulation’). 14 Exhibit 15.3, p 13. 15 Transcript p 37, ln 39-42. -- 6 of 12 -- 7 high risk construction work, given that it involved a risk of a person falling more than two metres. The SWMS needed to be prepared prior to the construction work commencing. It was required to identify the work that was high risk; state the hazards relating to the risks of a person falling more than two metres and the risks to safety associated with this hazard; describe the measures to be implemented to control the risks; and describe how the control measures were to be implemented, monitored and reviewed.16 This document was not in evidence before the magistrate. [28] By May 2019, construction was underway on the first floor of the house, which was approximately 2.8 metres from the ground. The suspended slab was being constructed and this involved some electrical work. Mr Scanlan could recall that there had been some discussion with Mr Diakos about “being careful’ up on that level where a narrow piece of concrete was to be poured in the vicinity of some stairs which were in “the middle of the house”. It was his evidence that there was no other safety instructions provided by Mr Diakos and that it “was just a job”. Rory Scanlan confirmed that he was never spoken to by Mr Diakos or anyone else from Delta regarding safety issues pertinent to working on the suspended slab. [29] The construction of the suspended slab also involved some steel fixing work. Azure Steel Fixing were the subcontractors engaged to perform this work. The company was owned and operated by Frank Pimblit, who had approximately 40 years of experience as a steel fixer. He gave evidence that prior to commencing work on the site he went onto the suspended slab and was surprised to see that there was no edge protection. He asked Mr Diakos if he would be erecting any and Mr Diakos told him that it was not necessary.17 Mr Pimblit went on to explain that “He’s the builder, I just accepted what he said.”18 Mr Pimblit told the steel fixers working for him to stay away from the edge of the deck. [30] On 29 May 2019, Mr Diakos was at the site. In one of his interviews with the investigators, he said that the reason he was there was to ensure that the subcontractors were safely doing their jobs. Mr Scanlan, his son and a few other workers were on site. For the previous few days and intermittently prior to that, Mr Scanlan and his son had installed conduit in the formwork of the suspended slab. Mr Pimblit and three other steel fixers were also present. They had finished tying the steel on the suspended slab and had been requested by Mr Diakos to clean the suspended slab. [31] Around midday, Mr Scanlan was reviewing a site plan to ensure that the conduits were correctly positioned. He sat on the edge board of the suspended slab and thought he felt something collapse from under him. He fell backwards over the edge and landed on the ground on his back. Even though a few people were up on the suspended slab at the time of the fall, it was not witnessed. Mr Scanlan had not previously had a similar fall in the course of his work. [32] In cross-examination, there was the following exchange between counsel for the appellants and Mr Scanlan: Counsel: You agree with me that there was no requirement for you to be near that waler board in terms of that diagram, correct? 16 Refer to ss 291 and 299 of the Regulation. 17 Transcript p 83, ln 32-40. 18 Transcript p 80, ln 10-11. -- 7 of 12 -- 8 Mr Scanlan: We – look, we – we – we were all working on a deck. We all got close to edges. Like, I just happened to pick that point to sit down. Counsel: Yes. And can I ask you, what exactly were you doing when you sat down? Mr Scanlan: I was – I had a plan Counsel: Yes? Mr Scanlan: Basically, I don’t – and I was just looking to see that what we’d installed was as per the plan …19 [33] Noel Hayes, who was the Principal Inspector for Construction, Workplace Health and Safety Queensland attended the site in the hours after the fall. Mr Diakos was present. Mr Hayes had very significant experience in construction, having worked in the industry for more than 50 years. When he arrived at the site, he noticed there was debris around on the ground around the construction and that some of the edges of the suspended slab were unprotected.20 He also saw some horizontal rails and vertical posts fixed to some of the formwork. It was his understanding that Mr Scanlan had fallen under one of these rails. This was incorrect in that there were no rails, edge protection or other safety control measure in the area where the fall occurred. [34] On 30 May 2019, Delta was issued improvement notices by Mr Hayes because he was satisfied it had contravened its statutory obligations. One of the contraventions was said to involve the absence of edge protection on the suspended slab as a fall prevention control measure21 The edge protection was installed the same day by M & M Projects Pty Ltd. [35] It was suggested to Mr Pimblit in cross-examination that edge protection in the context of the construction of a first floor is not usually erected until after the concrete has been poured, and he disagreed with that.22 He said it would usually be present and that he was surprised when he saw that it was not there.23 [36] It was Mr Hayes’ evidence that even though there was no mandatory requirement to install edge protection, in circumstances where the suspended slab was less than three metres from the ground, that control measures to manage the risk of falling were nevertheless required. There was the following exchange in evidence in chief between counsel for the respondent and Mr Hayes: Counsel: And does that mean, then, that nothing is required to be done because it falls under the three metre mark? Mr Hayes: No, it doesn’t. It’s a construction project, any – any project over $250,000 is deemed to be a construction project. Counsel: So what should be done? 19 Transcript p 35, ln 12-20. 20 Refer to exhibit 23, photograph 15. 21 Exhibit 15.10. 22 Transcript p 82, ln 37-41. 23 Transcript p 83, ln 3-4. -- 8 of 12 -- 9 Mr Hayes: Control- controls to be put in place for two metres. Counsel: Now also in your opinion, having been to the site, was there anything you noted which would suggest that controls could not have been implemented on a site such as this prior to ---? Mr Hayes: --- Could not have been? Counsel: Yes? Mr Hayes: No. There’s nothing of that.24 [37] When Mr Diakos spoke to investigators on 18 November 2019, he told them that when he attended upon Mr Scanlan after the fall that Mr Scanlan was repeatedly apologising saying that he had made a “silly decision” in sitting on the edge of the deck. [38] There was evidence from some of the workers to the effect that they had not previously witnessed a worker fall in similar circumstances. Mr Hogan accepted in cross- examination that in his experience a fall such as this would be rare and is not an everyday experience. However, Mr Hayes described falling from an elevated height as a “common risk”.25 He went on to explain that in his job as a principal investigator in the construction industry, that he would regularly have to investigate falls from heights from decks, scaffolding and similar structures. [39] Mr Hayes spoke of the need for a risk assessment to have been undertaken at the site and that such an assessment should have identified falling from a height as one of the hazards of working at the site. He went on to explain that once this hazard was identified, it needed to be managed by appropriate control measures, such as edge protection, scaffolding or the use of a harness system. [40] In one of the interviews with the investigators, Mr Diakos said he undertook a risk assessment, although he did not document it. He went on to say that he identified the risk of a fall but did not consider it to be a high risk because the electricians were not required to be near the edge of the suspended slab.26 For this reason, Mr Diakos did not implement any control measures to manage it. Consideration [41] In relation to both Delta and Mr Diakos, the principal issue at the hearing related to the second element of the offence created by s 32 of the Act. With respect to Delta, this involved a determination of whether the respondent discharged its onus in proving that at the time of the fall it was reasonably practicable for Delta to have taken one or more of the measures particularised by the respondent, namely installing edge protection, scaffolding and/or catch protection to prevent the risk of falling from the suspended slab. [42] Relevant to this issue, the magistrate made the following findings: (i) There was an obvious and apparent risk of a fall from the suspended slab, in circumstances where workers were permitted to work at a height of approximately 2.8 metres. 24 Transcript p 98, ln 4 to p 99 ln 8. 25 Transcript p 98, ln 13-14. 26 Exhibit 16, p 28. -- 9 of 12 -- 10 (ii) Any proper risk assessment would have identified the risk of a fall, which ought to have been managed by appropriate control measures. (iii) Mr Diakos did not document the risk assessment he undertook, and it was not a proper risk assessment with respect to the risk of a fall. (iv) Managing the risk by some informal discussion between Mr Diakos and some workers (not including the electricians) telling them not to go too close to the edge, was plainly inadequate. (v) Delta having acknowledged the risk of a fall, relied on the experience of the workers on site and did nothing to eliminate it. (vi) The cost of the necessary edge protection was less than $2,000 and could be installed within a day. [43] Having made these findings, the magistrate concluded that he was satisfied beyond reasonable doubt that it was reasonably practicable for Delta to have ensured that an appropriate control was implemented, namely the installation of edge protection. This had the consequence that Delta had failed to ensure its work, health and safety duties and that Mr Diakos had not exercised due diligence to ensure that Delta complied with those duties. It was in these circumstances that the magistrate found them both guilty of the offence pursuant to s 32 of the Act. [44] It is argued that the magistrate erred in: (i) Failing to enunciate evidence of the rarity of falls in similar circumstances when assessing what was ‘reasonably practicable’ on the part of Delta. (ii) Failing to refer to: (a) Mr Scanlan’s evidence that he completed a SWMS in which he considered the site to be safe. (b) Other evidence that Delta had completed a Safety Plan and a SWMS. (c) Finding that there was no proper risk assessment directed to the risk of a fall, even though Mr Diakos had conducted a risk assessment (albeit not documented) and considered the risk of a fall to be low. (d) Placing insufficient weight on Delta’s knowledge of the mandatory requirement for edge protection commencing at three metres and the fact that there was no similar requirement when working from a height of 2.8 metres. (e) Failing to properly consider: (a) The extensive experience of Mr Scanlan and the other workers on the site. (b) The long-standing working relationship between Mr Diakos and Mr Scanlan. (c) That there was no reason for any of the electricians to be working near the edge of the suspended slab and it was not foreseeable that a worker would do such an act. [45] I will address each of these in turn. [46] Contrary to the submissions of the appellants, the magistrate in his reasons referred to the evidence of some of the witnesses (including Mr Scanlan) to the effect that they were not aware of prior similar falls in the course of their work. There are two points to be made about this evidence. First, the magistrate was correct to consider it to be irrelevant to any issue to be determined. Immunity from accident is quite compatible with the existence of a danger and may be due to for example, good fortune.27 Further, it overlooks the fact that the test is objective and involves a consideration of the knowledge possessed by persons generally who are engaged in the residential construction 27 Mitchell v North British Rubber Co (1945) SC (J) 69 at 74. -- 10 of 12 -- 11 industry.28 Second, the evidence of these workers needed to be balanced against the evidence of Mr Hayes (as a very experienced principal investigator in the construction industry), to the effect that falls from heights are common occurrences in the industry. There was also the evidence of Mr Pimblit that he was sufficiently surprised when he realised that there was no edge protection to question Mr Diakos about it and warn the steel fixers working for him to stay away from the edge. There is nothing in this appeal point. [47] As to the second ground of appeal, there is also no merit in this. Mr Scanlan’s view as to the safety or otherwise of the site was irrelevant to a determination of whether Delta had complied with its health and safety obligations under the Act. Equally, it is unsurprising that the magistrate did not refer to Delta’s Safety Plan or SWMS when determining whether Delta had complied with its statutory obligations. The Safety Plan did not assist Delta because it expressly referred to the need for edge protection where work could not be undertaken on the ground. As to the SWMS, it was not before the magistrate. [48] Turning to the third ground of appeal, I agree with the magistrate’s finding that Mr Diakos did not conduct a proper risk assessment. The evidence establishes that the steps taken by Mr Diakos in this regard could be considered as cursory at best. While I accept that there was no requirement for any risk assessment to be documented, there needed to be a structured and systematic approach to risk management, and it was clearly open to the magistrate to be satisfied that there was not. Another deficiency with Mr Diakos’ approach to assessing risks, is that having identified the risk of a fall, he took no proactive steps to manage it. This necessarily means that I reject the submission of the appellants that the magistrate’s finding that there was no proper risk assessment is incongruent with the findings he made at paragraph 48 of the decision. [49] The fourth appeal point involves a consideration of the difference in statutory obligations imposed on principal contractors depending on the height from which there is a risk workers could fall. The magistrate clearly understood that there was no mandatory obligation on Delta for fall control measures to be implemented, given that the distance a person could fall from the suspended slab was less than three metres. However, this did not relieve Delta of its obligations under the Act and Regulation to protect workers against harm through the elimination or minimisation of risks arising from working on the suspended slab. This is confirmed by s 306C(c) of the Regulation which required Delta to: (i) ensure that each hazard that may have resulted in a fall or cause death or injury if a person were to fall, was identified; (ii) assess the risk of injury or death that may have resulted because of the hazard; and (iii) use any control measures necessary to prevent or minimise the level of exposure to the risk. [50] As detailed in paragraph 48 above, having identified the risk of falls, Delta did not put in place any control measures to prevent or minimise the level of exposure that workers may have had to this risk. For these reasons, the magistrate’s decision cannot be understood as evidencing a failure to understand that there was no requirement for Delta to implement fall control measures. [51] As to the final ground of appeal, I am not satisfied that the magistrate failed to consider the matters articulated in paragraph 44(e) above. While they were all relevant 28 Laing O’Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 at [33]. -- 11 of 12 -- 12 considerations, they did not obviate the need for Delta to comply with its statutory obligations. Delta’s duty was more onerous than simply preventing foreseeable risks of injury. It was required to protect against all risks, in so far as it was reasonably practicable, to achieve the provision of and maintenance of a safe working environment. While Delta may not have foreseen that a worker of Mr Scanlan’s experience might sit on the edge of the slab, it was required to conduct its operations in recognition of the inevitability of human error and that such acts of inadvertence, carelessness or complacency will occur (even with experienced workers with whom it had a longstanding working relationship), and that they needed to be guarded against to the fullest extent practicable. This did not occur. [52] Mr Diakos had a statutory duty to exercise due diligence to ensure that Delta complied with its duty or obligations. Accepting that Delta failed to discharge its duty to take reasonable precautions to avoid a worker falling over the edge of the suspended slab, I agree with the magistrate that Mr Diakos failed to ensure that Delta complied with that duty. [53] In conclusion, having considered the whole of the evidence, it was reasonably open for the magistrate to have been satisfied beyond reasonable doubt that Delta and Mr Diakos failed to comply with their respective health and safety duties contrary to s 32 of the Act. Costs [54] Section 226 of the Justices Act gives the court a broad discretion to make an order as to costs to be paid by either party, provided the discretion is exercised judicially.29 Costs are intended to compensate the successful party against its costs of successfully resisting the appeal. [55] Having been unsuccessful in the appeal, it is not in dispute that the appellants should pay the respondent’s costs fixed at $1,800 for instructions and preparation for the hearing, including attendance at the hearing. The respondent seeks an additional $300 for the costs of appearing at the mention on 29 January 2026. This mention was listed for the purpose of clarifying the appellants grounds of appeal. It is reasonable to allow the additional $300, in circumstances where following the mention the appellants filed further written submissions expanding on their grounds of appeal. Orders [56] It is ordered that: (i) The appeals against convictions are dismissed. (ii) Delta and Mr Diakos pay the respondent’s costs of the appeals fixed in the sum of $2,100. 29 Latoudis v Casey (1990) 170 CLR 534 -- 12 of 12 --