Inspector David Clyant v Dalway Enterprises Pty Ltd. [2004] NSWIRComm 379

Inspector David Clyant v Dalway Enterprises Pty Ltd. [2004] NSWIRComm 379

The defendant, in control of the construction site at 82 Parramatta Road, Camperdown, committed a serious offence under s 10(1) of the Occupational Health and Safety Act 2000 by failing to provide adequate supervision and, centrally, failing to provide temporary support for the adjoining wall while discussions about permanent support were continuing, thereby exposing persons working at the premises to risks to health. Although the defendant relied on expert advice, did not ignore concerns, had no prior convictions and cooperated after the collapse, the seriousness of a wall collapse on a building site required a substantial penalty, reduced by discounts for the early plea and other...

Jurisdiction
Australia
Judgment Date
29 November 2004
Procedural Posture
Prosecution Under S 10(1) of the Occupational Health and Safety Act 2000 / Penalty on Plea of Guilty to Amended Application for Order
Outcome
Defendant found guilty and fined after plea of guilty.
Legal Topics
['control of Premises Used as a Place of Work' 'construction Site Safety' 'risk of Collapse of Adjoining Wall' 'failure to Provide Adequate Supervision' 'failure to Provide Adequate Temporary Support' 'general and Specific Deterrence' 'early Guilty Plea Discount']
['occupational Health and Safety' 'industrial Relations' 'criminal Sentencing'] ['control of Premises Used as a Place of Work' 'construction Site Safety' 'risk of Collapse of Adjoining Wall' 'failure to Provide Adequate Supervision' 'failure to Provide Adequate Temporary Support' 'general and Specific Deterrence' 'early Guilty Plea Discount']

Case Brief

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Procedural Posture

Prosecution Under S 10(1) of the Occupational Health and Safety Act 2000 / Penalty on Plea of Guilty to Amended Application for Order

Legal Issues

  1. 1 ['Whether the defendant, being in control of premises used as a place of work, failed to ensure the premises were safe and without risks to health under s 10(1) of the Occupational Health and Safety Act 2000.' 'The objective seriousness of the offence arising from construction work that undermined and destabilised an adjoining building wall which later collapsed.' 'The extent to which foreseeability of the wall collapse affected seriousness of the offence.' "The appropriate penalty having regard to the defendant's reliance on expert engineering advice, absence of prior convictions, cooperation with WorkCover, early guilty plea, and deterrence."]

Ratio Decidendi

The defendant, in control of the construction site at 82 Parramatta Road, Camperdown, committed a serious offence under s 10(1) of the Occupational Health and Safety Act 2000 by failing to provide adequate supervision and, centrally, failing to provide temporary support for the adjoining wall while discussions about permanent support were continuing, thereby exposing persons working at the premises to risks to health. Although the defendant relied on expert advice, did not ignore concerns, had no prior convictions and cooperated after the collapse, the seriousness of a wall collapse on a building site required a substantial penalty, reduced by discounts for the early plea and other...

Court Disposition

Defendant found guilty and fined after plea of guilty.

Orders

  • ['The defendant is found guilty of the offence under section 10(1) of the Occupational Health & Safety Act 2000 to which it pleaded guilty to the amended application for order in matter No IRC 6248 of 2003.' 'The defendant is fined the sum of $78,000 with moiety thereof to the prosecutor.' "The defendant is to pay...