Inspector Maurice Vierow v Barclay Mowlem Construction Limited [2008] NSWIRComm 1

Inspector Maurice Vierow v Barclay Mowlem Construction Limited [2008] NSWIRComm 1

Barclay Mowlem Construction Limited failed to ensure a safe system of work, safe plant, and adequate information, training, and supervision for both employees and non-employees on site, resulting in foreseeable, serious risks and actual fatal and serious injuries; the objective seriousness was high, and despite prior good practices and subsequent remedial actions, substantial penalties are required for both general and specific deterrence, and the totality principle requires the sentences reflect distinct breaches of duty to employees and non-employees.

Jurisdiction
Australia
Judgment Date
10 January 2008
Procedural Posture
Criminal Prosecution / Sentencing After Guilty Plea
Outcome
defendant convicted on both charges; fines imposed; costs awarded to prosecutor
Legal Topics
['employer Duties' 'workplace Deaths' 'workplace Injury' 'safe Work Systems' 'plant Safety' 'training and Supervision' 'sentencing' 'totality' 'parity']
['occupational Health and Safety' 'criminal Law' 'industrial Law'] ['employer Duties' 'workplace Deaths' 'workplace Injury' 'safe Work Systems' 'plant Safety' 'training and Supervision' 'sentencing' 'totality' 'parity']

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Procedural Posture

Criminal Prosecution / Sentencing After Guilty Plea

Legal Issues

  1. 1 ['Whether the defendant failed to ensure health, safety, and welfare of employees under s 8(1) of the Occupational Health and Safety Act 2000' 'Whether the defendant failed to ensure non-employees were not exposed to risks under s 8(2) of the Occupational Health and Safety Act 2000' 'How objective and subjective seriousness and parity affect sentence']

Ratio Decidendi

Barclay Mowlem Construction Limited failed to ensure a safe system of work, safe plant, and adequate information, training, and supervision for both employees and non-employees on site, resulting in foreseeable, serious risks and actual fatal and serious injuries; the objective seriousness was high, and despite prior good practices and subsequent remedial actions, substantial penalties are required for both general and specific deterrence, and the totality principle requires the sentences reflect distinct breaches of duty to employees and non-employees.

Court Disposition

defendant convicted on both charges; fines imposed; costs awarded to prosecutor

Orders

  • ["IRC 34 of 2007: Defendant convicted under s 8(1) Occupational Health and Safety Act 2000; fined $150,000 (moiety to prosecutor); pay prosecutor's costs as agreed or assessed." "IRC 35 of 2007: Defendant convicted under s 8(2) Occupational Health and Safety Act 2000; fined $150,000 (moiety to prosecutor); pay...