Inspector Steven Nikolovski v Northpac Constructions Pty Limited and Anor [2009] NSWIRComm 204

Inspector Steven Nikolovski v Northpac Constructions Pty Limited and Anor [2009] NSWIRComm 204

Northpac was an employer and principal contractor undertaking the construction work at the premises. Bricklayers working on level three without catch scaffolding were exposed to a foreseeable and serious risk of falling from height, and Northpac failed to ensure adequate fall protection and adequate supervision to prevent work in that area before scaffolding was raised. The risk arose from Northpac's undertaking and at its place of work. Northpac did not establish either s 28 defence because raising the scaffolding was within its control and the magnitude of the risk outweighed the time and difficulty of doing so. The prosecution did not prove beyond reasonable doubt that Nicholas...

Jurisdiction
Australia
Judgment Date
27 November 2009
Procedural Posture
Occupational Health and Safety Prosecution / Defended Hearing
Outcome
Northpac Constructions Pty Ltd was found guilty of the s 8(2) offence. The s 10(1) prosecution against Nicholas Commisso was dismissed. Costs were reserved and the matters were set down for directions.
Legal Topics
['failure to Ensure Safety of Non Employees' 'person in Control of Premises' 'fall From Height' 'catch Scaffolding' 'section 28 Defences' 'construction Site Safety']
['occupational Health and Safety' 'industrial Law'] ['failure to Ensure Safety of Non Employees' 'person in Control of Premises' 'fall From Height' 'catch Scaffolding' 'section 28 Defences' 'construction Site Safety']

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Procedural Posture

Occupational Health and Safety Prosecution / Defended Hearing

Legal Issues

  1. 1 ['Whether Northpac Constructions Pty Limited, as an employer, failed under s 8(2) of the Occupational Health and Safety Act 2000 to ensure that persons not in its employment, including Daryl Sadler, were not exposed to risks to health or safety arising from the conduct of its undertaking at its place of work.' 'Whether the absence of catch scaffolding on level three exposed bricklayers to a risk of falling from height.' 'Whether Northpac failed to adequately supervise work so as to prevent bricklayers working in an area without adequate fall protection.' "Whether the risk to safety arose from the conduct of Northpac's undertaking as principal contractor or builder at the premises." 'Whether Northpac established a defence under s 28(a) or s 28(b) of the Occupational Health and Safety Act 2000.' 'Whether Nicholas Commisso was a person who had control of the premises for the purposes of s 10(1) of the Occupational Health and Safety Act 2000.']

Ratio Decidendi

Northpac was an employer and principal contractor undertaking the construction work at the premises. Bricklayers working on level three without catch scaffolding were exposed to a foreseeable and serious risk of falling from height, and Northpac failed to ensure adequate fall protection and adequate supervision to prevent work in that area before scaffolding was raised. The risk arose from Northpac's undertaking and at its place of work. Northpac did not establish either s 28 defence because raising the scaffolding was within its control and the magnitude of the risk outweighed the time and difficulty of doing so. The prosecution did not prove beyond reasonable doubt that Nicholas...

Court Disposition

Northpac Constructions Pty Ltd was found guilty of the s 8(2) offence. The s 10(1) prosecution against Nicholas Commisso was dismissed. Costs were reserved and the matters were set down for directions.

Orders

  • ['In Matter No IRC 1026 of 2007 the defendant Northpac Constructions Pty Ltd is found guilty of the offence.' 'Matter No IRC 1027 of 2007 is dismissed.' 'In Matter Nos IRC 1026 and 1027 of 2007 costs are reserved.' 'Matter Nos IRC 1026 and 1027 of 2007 are set down for directions hearings at 9:30 am on 15 December...