Inspector Chaston v M&H Bricklaying Services Pty Limited (In liquidation) and Ors [2007] NSWIRComm 153

Inspector Chaston v M&H Bricklaying Services Pty Limited (In liquidation) and Ors [2007] NSWIRComm 153

The wall collapsed because it was unstable, with contributing factors including the speed and height of construction, the green state of the brickwork, heavy lintels placed without propping, lack of lateral support or bracing, and non-compliance with Australian Standard 3700 – 2001. The risk of collapse was obvious and foreseeable. M&H failed to assess and control that risk, to provide adequate support or bracing, to apply and monitor an adequate safe work method, to comply with the Standard, and to train workers. Infinity, as principal contractor and employer at the place of work, failed to ensure M&H's method was adequate, failed to monitor the work, failed to ensure support or...

Jurisdiction
Australia
Judgment Date
22 June 2007
Procedural Posture
Occupational Health and Safety Prosecutions Under Sections 8(2), 10(1) and 26(1) of the Occupational Health and Safety Act 2000 / Judgment After Pleas of Not Guilty; Liability Determined and Remaining Matters to Be Listed for Sentencing
Outcome
Charges against Infinity Constructions Pty Limited, Alan Yazbek and Mohammed Moussalli established to the requisite standard; leave granted to withdraw the charge against M&H Bricklaying Services Pty Ltd with no order as to costs; other matters to be listed for sentencing.
Legal Topics
['construction Industry Safety' 'masonry Wall Collapse' 'employer Duties to Non Employees' 'duties of Controllers of Work Premises' 'director Liability' 'causal Connection' 'due Diligence Defence']
['occupational Health and Safety' 'industrial Relations'] ['construction Industry Safety' 'masonry Wall Collapse' 'employer Duties to Non Employees' 'duties of Controllers of Work Premises' 'director Liability' 'causal Connection' 'due Diligence Defence']

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Procedural Posture

Occupational Health and Safety Prosecutions Under Sections 8(2), 10(1) and 26(1) of the Occupational Health and Safety Act 2000 / Judgment After Pleas of Not Guilty; Liability Determined and Remaining Matters to Be Listed for Sentencing

Legal Issues

  1. 1 ['Whether M&H Bricklaying Services Pty Ltd contravened section 10(1) of the Occupational Health and Safety Act 2000 by failing to ensure premises under its control were safe and without risks to health.' 'Whether Mohammed Moussalli, as a director of M&H Bricklaying Services Pty Ltd, was taken by section 26(1) to have contravened section 10(1).' 'Whether Infinity Constructions Pty Limited contravened section 8(2) by exposing persons other than its employees to risks to health or safety arising from the conduct of its undertaking at its place of work.' 'Whether Alan Yazbek, as a director of Infinity Constructions Pty Limited, was taken by section 26(1) to have contravened section 8(2), and whether he established a statutory defence.' "Whether the prosecutor established the necessary causal connection between the defendants' acts or omissions and the risk of the masonry wall collapsing."]

Ratio Decidendi

The wall collapsed because it was unstable, with contributing factors including the speed and height of construction, the green state of the brickwork, heavy lintels placed without propping, lack of lateral support or bracing, and non-compliance with Australian Standard 3700 – 2001. The risk of collapse was obvious and foreseeable. M&H failed to assess and control that risk, to provide adequate support or bracing, to apply and monitor an adequate safe work method, to comply with the Standard, and to train workers. Infinity, as principal contractor and employer at the place of work, failed to ensure M&H's method was adequate, failed to monitor the work, failed to ensure support or...

Court Disposition

Charges against Infinity Constructions Pty Limited, Alan Yazbek and Mohammed Moussalli established to the requisite standard; leave granted to withdraw the charge against M&H Bricklaying Services Pty Ltd with no order as to costs; other matters to be listed for sentencing.

Orders

  • ['Leave to withdraw the charge in Matter Number IRC 626 of 2006 against M&H Bricklaying Services Pty Ltd is given, without an order for costs being made.' 'The other matters will be listed for sentencing.']