Betterlay Brick and Block Laying Pty Ltd v Williamson [2018] QDC 172

DISTRICT COURT OF QUEENSLAND CITATION: Betterlay Brick and Block Laying Pty Ltd v Williamson [2018] QDC 172 PARTIES: BETTERLAY BRICK AND BLOCK LAYING PTY LTD (appellant) v IAN WILLIAMSON (respondent) FILE NO/S: D40/17 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Beenleigh DELIVERED ON: 24 August 2018 DELIVERED AT: Brisbane HEARING DATE: 17 April 2018 JUDGE: Richards DCJ ORDER: Appeal allowed. Convictions set aside. The respondent is ordered to pay the appellants costs of this appeal and the summary trial as agreed or to be assessed CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – GENERALLY – where the appellant was convicted in the Magistrates Court for failing to comply with its health and safety duty – whether the appellant breached its duty – whether the Magistrate erred in finding that all the elements of the offence had been proved beyond a reasonable doubt– whether the offence occurred on the date stated in the complaint - whether the appeal should be allowed. COUNSEL: Mr R Perry QC for the appellant Mr P Matthews for the respondent SOLICITORS: Norton Rose Fulbright Australia for the appellant Office of the Industrial Relations for the respondent [1] The appellant was convicted on 12 October 2017 under section 33 of the Work Health and Safety Act 2011 (Qld) (“the Act”) of an offence of failure to comply with its -- 1 of 11 -- 2 health and safety duty under section 19(2) of the Act. A fine of $35,000 was imposed together with an order to pay the costs of the prosecution. The appellant has appealed against that conviction. [2] The appellant has appealed on three grounds: 1. The learning acting Magistrate erred in finding that the complainant had established elements of the offence charged by the complainant made on 2 December 2016, that Betterlay Brick and Block Laying Pty Ltd failed to discharge its duty under section 19(2), contrary to section 33 of the Act to ensure so far as is reasonably practical that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking on 2 December 2014. 2. The learned acting Magistrate erred in finding that the health and safety of other persons were put at risk from work carried out as part of the conduct of the business or undertaking of Betterlay Brick and Block Laying Pty Ltd. 3. The learned acting Magistrate erred in finding that Betterlay Brick and Block Laying Pty Ltd did not take steps which were reasonably practicable to ensure the health and safety of other persons was not at risk from work carried out as a part of the conduct of the business or undertaking. [3] The complaints alleged that: “On the second day of December 2014 at Beenleigh in the Beenleigh Magistrates Court’s District appointed under the Justice Act 1886, Betterlay Brick and Block Laying Pty Ltd being a company duly incorporated according to law and a person who had a health and safety duty under section 19(2) of the Work Health and Safety Act 2011, being a person conducting a business or undertaking who must ensure, so far as is reasonably practicable, the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking, failed to comply with the duty contrary to section 33 of the said Act.” Particulars of the breach were outlined in the complaint. -- 2 of 11 -- 3 Facts [4] The appellant is a brick and block laying company. The appellant was contracted by Mt Cotton Constructions Pty Ltd in August 2014 to lay block walls at the Trinity College music and drama auditorium refurbishment at Beenleigh. Mt Cotton Constructions Pty Ltd (MCC) were the principal contractors for the refurbishment. MCC had also contracted Logan Steel Pty Ltd (Logan Steel) to carry out works on the site including the installation of steel beams. [5] The appellant was contracted to lay block walls at the site. Part of the duties undertaken by the appellant in laying the block walls was to insert steel reinforcing into the block walls and core fill the block walls. On 28 November 2014, the sole director of the appellant company, Damien Coonan attended the site with a labourer employed by himself to finish the remaining block walls and core fill a block wall that had not yet been core filled. On that occasion the site manager Garry Briscoe who was employed by MCC indicated that two of his workers would assist him to insert the steel reinforcements so that the wall could be filled and further time would not be wasted waiting for that to be done. The block wall was core filled and this was the last occasion that the appellant was on the work site at Trinity College. [6] On 2 December 2014, Logan Steel attended the site to attach a steel beam to a wall. The workmen had just begun to attach the steel beam. They had connected one end to plate that had been fixed to the block wall and had begun to put the beam in place at the other end when the wall fell onto an elevated work platform where another worker was positioned. The worker Walter Mathey was pinned on the platform by the collapsed section of the wall. -- 3 of 11 -- 4 [7] On 3 December 2014, the collapsed wall was examined and it was established that there was no steel reinforcing inside the wall. The law [8] Section 19(2) of the Act provides: “A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.” [9] Section 33 provides: “A person commits a category three offence if (a) The person has a health and safety duty and (b) The person fails to comply with that duty” [10] Section 19(3) lists a number of factors which can be considered as necessary to be provided and maintained to ensure the safety and health of workers. It is not however, an exhaustive list. Section 18 defines the phrase “reasonably practicable” as follows: “In this Act reasonably practicable in relation to a duty to ensure health and safety, 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 – (a) The likelihood of the hazard or the risk concerned occurring; and (b) The degree of harm that might result from the hazard or the risk; and (c) What the person concerned knows, or ought reasonably to know about – i. The hazard or the risk; and ii. Ways of eliminating or minimising the risk; and (d) The availability and suitability of ways to eliminate or minimise the risk; and (e) After assessing the extent of the risk and available ways of eliminating or minimising the risk, the costs associated with available means of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.” [11] Three matters arise from the grounds of appeal: -- 4 of 11 -- 5 1. Whether the complainant has established the elements of the offence charged in particular, whether the offence occurred on 2 December 2014 and whether the work done by the complainant caused the risk in question. 2. Whether the appellant was responsible for the risk from the work carried out, or whether the responsibility fell to MCC. 3. Whether reasonably practicable steps were taken to ensure the health and safety of other persons. [12] At the beginning of the hearing formal admissions were made as follows: 1. On 2 December 2014, Betterlay Brick and Block Laying Pty Ltd was a company duly incorporated under the Corporations Act 2001 (Cth). 2. On 2 December 2014 Betterlay Brick and Block Laying Pty Ltd’s business/undertaking was provision of block laying services including core filling. 3. Betterlay Brick and Block Laying Pty Ltd had been engaged to undertake block laying works at Trinity College, Scott Street, Beenleigh in particular the block wall located at the end of the veranda slab to music room A. [13] The particulars of the breach were that; the appellant was required to have steel in reinforcement vertically placed in the block wall at the end of veranda slab to music room A before it was core filled to ensure sufficient structural adequacy, the risk was that the wall would fail and do so without warning to persons in nearby vicinity, and that the company did not ensure that there was steel reinforcement placed in the wall before it was core filled. [14] There was varying evidence given about what happened in relation to the steel reinforcement on the day in question. The site supervisor, Garry Briscoe gave -- 5 of 11 -- 6 evidence that he did not indicate that his workers would put in the reinforcing for Betterlay. Mr Briscoe gave evidence that he had insisted that the appellant come to finish the job for which was contracted, that he showed them where the steel was and that he left before the core filling had commenced. He conceded that on previous occasions his workers had assisted Betterlay by putting in steel reinforcing because the wall construction was running behind time. Mr Briscoe indicated that the wall was not particularly big so the steel might take two minutes to drop in. He said in those circumstances it would have made no sense for him to say that he would do it. He disagreed that there had been any conversation about his workers putting the steel in the wall. [15] Mr Phillips, a labourer working for MCC, gave evidence for the prosecution indicating that he had previously put steel in the block brick work but that they were horizontal bars, not vertical. He indicated that he was at the site on 28 November and he did put some steel in a block wall but it was not on the wall that collapsed. [16] Damien Coonan, the director of the appellant, gave evidence and also participated in a recorded interview which was tendered at the trial. His evidence was consistent with his record of interview. He said on the day in question he was being pressured to come and finish off the work. He said he had a conversation with Mr Briscoe who said that he would do all the steel and he would take responsibility for it. He said he organised for the concrete to come for the core filing. He agreed that the structural integrity of the block wall would be compromised if there was no steel reinforcement placed into it.1 He agreed that on the day he was responsible for the core filling and that he also had another block wall to finish. He agreed that it was his responsibility to finish the block walls completely. 1 T1-18 and 19 [day 2 of transcript]. -- 6 of 11 -- 7 [17] In his interview with the work health and safety officers on 19 May 2015 he indicated that he was giving some oversight to the job through his employee, Clay:2 “So with Mt Cotton dropping in the steel and you guys coming along and doing the core fill, how do you know what lengths of steels they dropped in and how far apart and whether they tied them and all that? Answer: Yes, well Clay – Clay was – Clay was watching them kind of cutting the steel and he went over there and then he went over to them where the big wall in question was and he goes ‘are you right with this now? Do you know how to do it? Yep, yep, yep. So he was just giving them, telling them the height and you need to come down roughly 50mm so because he went over and had a chat to them and they said yes they were doing it but it’s – it’s common – it’s very common knowledge for anyone that’s been around construction or they know that the steel you’ll actually put a dropper in there where the length of it and all that. So they – they obviously would have been instructed as well by Garry Briscoe.’” [18] Further he was asked if he had spoken to the people putting the steel in:3 “Yes well I’ve asked – I spoke to them. I was more so laying yes and I’ve also asked – asked like Clay and the others and they were 100 per cent have you got it? Yep, no they’re all over it. I then sent him and said to him – I said to walk over – I want you to walk over and they said yes, yes we’ve got, we’ve got it so in the rush and then they just yes, forgotten it. I don’t know how. God knows how they didn’t get it in but that’s I do not understand how they did not get the steel in the wall because it was all…” [19] He said it would not have taken him about 2 minutes to put the steel in himself. He was asked if he had seen anyone putting the steel reinforcing in the wall. His reply was: 4 “No I didn’t – I didn’t – no I didn’t see them so like I said they were – they were just – they were in that area they were putting steel in there I even went like so Clay went over and said “make sure you get the tall wall and they said ‘yep, got it’.” [20] He indicated that he believed it was MCC’s responsibility to make sure the steel was in the walls and that there should have been an engineer inspection before the wall was core filled. He said normally he would do a final inspection of the block wall 2 Ex 4 Transcript of Interview page 12. 3 Ex 4 Transcript of Interview page 15 line 25. 4 Ex 4 Transcript of Interview page 23 line 30. -- 7 of 11 -- 8 before pouring concrete but he did not on this occasion, nor did he find out if the engineer had signed off on the steel. [21] Mr Prove, a civil engineer provided a report on the incident5 and gave evidence. The report concluded that the wall, without steel reinforcing, was at risk of collapse without warning: “3.1. The effect of not providing vertical reinforcement in the 190 core filled block wall would be two-fold, the structural capacity of the wall in bending would be dramatically reduced and the wall would become a brittle no ductile structural element, meaning that, in the event of a failure, there would be no warning, the failure would be immediate. 3.2. In our opinion had the roof framing been successfully connected to the block wall the block wall would not have been structurally adequate, it would still be non-ductile structural element which is not permitted in the circumstances.” Discussion [22] The appellant was a company incorporated according to law. There is no contest that it had a health and safety duty under section 19(2) of the Act. The appellant was a person conducting a business or undertaking and was therefore required to ensure the health and safety of other persons from work carried out as part of conduct of the business or undertaking. The failure to check that the steel reinforcement was in the wall was, in my view, a failure on part of the appellant. [23] The argument by the appellant that the duty was that undertaken by MCC, in my view, is not one that is made out on the evidence. Even accepting that the workers were helping by putting in the steel reinforcement, it is clear from the evidence of the appellant that he still understood that he had a duty to check that the work was being done. His sole job on the work site was to build the block walls and the block walls were required to be built in a way that was safe for workers and other people visiting 5 Exhibit 2. -- 8 of 11 -- 9 the site. Section 14 of the Act provides that the duty is non delegable. Even if there was an offer by MCC to assist in finishing the walls or to put in the steel reinforcing, the obligation was still on the appellant to ensure there was steel reinforcing in the wall before it was core filled and the appellant failed in that duty. The evidence is that the wall once core filled without reinforcing became non-ductile structurally and therefore presented a risk to others. [24] The collapse of the wall occurred on 2 December 2014 but the failure to comply with the Act occurred on 28 November 2014 when the appellant core filled the wall without taking notice of whether the steel reinforcement was present in the wall. [25] It was submitted on behalf of the respondent that the offence was a continuing offence. I disagree with that interpretation of the Act. The risk arises at the time that the wall is core filled. The risk may not be known until injury or collapse occurs but that does not means that the offence does not occur until this event. The incident that manifests the risk is no more than evidence that the risk was real. The risk, however, does not have to be manifested before a breach of the act occurs. The risk is there even if it only a potential risk. In my view support for this interpretation can be found in the fact that the time for prosecution of the offence under s33 of the Act does not run until the offence comes to the notice of the regulator or after a coronial inquiry or report.6 [26] A secondary argument was launched that the risk arose when the sub-contractors attempted to attach a steel roof support beam to the wall. This was done without building certification, and that created the risk. It is argued that MCC was obliged to obtain the relevant certification before weight was applied to the wall. It may be that 6 Work Health and Safety Act 2011 (Qld), s232. -- 9 of 11 -- 10 there is an argument that MCC should also have been charged with an offence under the Act but that does not in my view, relieve the appellant of responsibility. [27] The next question is whether it was reasonably practicable for him to take responsibility for the steel filling of the wall. In that regard s18 of the Act requires an assessment of what the appellant was reasonably able to do in relation to ensuring the health and safety including the availability and suitability of ways to eliminate or minimise the risk in this case. Although there was criticism of the Magistrate finding that the appellant could simply have looked into the wall to see if there was steel reinforcement before core filling it, the simple fact is that the Act requires an assessment of what could be done. There was a simple, cost effective and easy way of ensuring that the risk did not eventuate, namely visual inspection. In my view, it is relevant that there was an easy way to avoid this problem and it was reasonably practicable for him to do so. As was noted in Slivak v Lurgi [2001] 205 CLR 304 at 52: “The words" reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts.” [28] It follows from these observations, that in my view the appellant did not ensure as far as was reasonably practicable the health and safety of others. Conclusion [29] In my view there is clear evidence that the appellant did breach his duty under the Act. However, that breach was not occasioned on 2 December 2014. It is of no consequence that the appellant was not onsite on the day the wall collapsed, but the relevant offence occurred on the day that the core filling took place without the insertion of the steel reinforcement. The offence occurred on 28 November 2014. It -- 10 of 11 -- 11 follows that the prosecution did not prove its case beyond reasonable doubt. In those circumstances the appeal must be allowed. ORDER Appeal allowed. Convictions set aside. The respondent is ordered to pay the appellants costs of this appeal and the summary trial as agreed or to be assessed -- 11 of 11 --