Bellard Pty Ltd v Perry (2015)

Facts

Elite Concrete Pumping Pty Ltd (Elite Concrete) is a concrete work contractor. Elite Concrete supplied a 17-year-old worker to the building company Bellard Pty Ltd to work on one of their building sites in South Australia. On the worker’s first day of work, 26 September 2011, he fell backwards while pouring concrete. The worker fell 8 meters down an exposed lift shaft that was “loosely” covered, injuring his back, leg, head, eyes and mouth in the process.

Judgment

Bellard was found to have breached section 23(a) of the Occupational Health, Safety and Welfare Act 1986 (SA) (which has since been repealed) for failing to ensure, so far as reasonably practicable, that the workplace was maintained in a safe condition. The Court found that Bellard breached the Act by not securing the cover over the lift shaft or fencing the lift shaft from access by workers on the building site.

Bellard was fined $125,000 and ordered to publish notices of remorse in three Adelaide publications. The industrial magistrate reduced the fine by 20% (to $100,000) due to Bellard’s early guilty plea.

Bellard appealed on the basis that:

• the starting point of $125,000 was excessive; and
• there was no direction provided as to which publications the notices should be published in. This could create significant variations in cost to Bellard, depending on the size and distribution of the publications.

The South Australian Industrial Relations Court found that although the starting point of the fine was appropriate due to the very serious hazard of the unsecured lift shaft, which made the Bellard building site unsafe, the fee reduction of 20% was not sufficient considering that “there was no proper evidentiary basis to reject Bellard’s submission of genuine contrition”. Accordingly, Senior Judge Jennings increased the discount of the fine to 30% ($87,500) and revoked the non-pecuniary penalty of the publicity order.

Lessons

When employers are fined for providing a “plainly unsafe” workplace, the fine may be reduced if the employer shows genuine contrition.

However, you should always ensure that any health and safety risks are eliminated or minimised, particularly when contractors, who are not as familiar with the worksite as everyday workers, are onsite. One way to do this would be to have written hazard identification and risk assessment processes available onsite.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.