Company fine over Eagle Farm deaths was ‘disproportionate’, judge rules

The company at the centre of a Brisbane workplace accident in which two men were crushed to death under a concrete slab has been hit with a tougher fine after an appeal.

The men, Ashley Morris, 34, and Humberto Leite, 55, had been working on the construction of facilities at the Eagle Farm Racecourse in October 2016 when a slab being moved by a crane fell on them.

Criscon Pty Ltd, the principal contractor on the site, pleaded guilty last year to two breaches of the state’s Work Health and Safety Act and was ordered to pay a fine of $405,000 with no convictions recorded.

The first breach was on September 30, 2016, with workers exposed to a risk of death or serious injury when positioning pre-cast concrete panels being lowered during construction of a below-ground foul water tank.

While constructing a second tank days later, on October 6, two of the 10-tonne panels fell one after the other, killing both men.

During the hearing, the court was advised Criscon had appointed a liquidator, which told the court the company would not be represented. For that reason, the company neither consented nor opposed the orders sought in the appeal.

The appellant, represented by counsel Michael Copley, QC, and solicitors from the Work Health and Safety Prosecutor’s office, had submitted the fine was inadequate because the original magistrate failed to factor in all material considerations.

In his decision delivered last week, Mr Farr allowed the appeal but disagreed there had been a failing of the magistrate.

However he found that, considering the nature of fines imposed in other cases with only a single event and death, the fine in this case was “so disproportionate” to the seriousness that it would “undermine public confidence” in the court’s ability to deter others.

“The fact that this matter involves two separate yet identical events, separated by a period of only six days, is a distinguishing feature of significance,” Mr Farr wrote.

He noted that Criscon had argued its culpability was lower because it placed reliance on a subcontractor engaged to build the two pits, but said the fact the contractor may have been criminally negligent highlighted the company’s “woefully inadequate” regard to its health and safety duties.

“That it should occur twice is not only extraordinary but is demonstrative of culpability of the highest order.”

Mr Farr said that if Criscon had paid “even the slightest heed” to its health and safety duties the pair “would still be alive”.

But he did not support the appellant’s submissions that “appropriate penalty range should be between $750,000 and $1 million.

Mr Farr also ruled the magistrate was within their area of “decisional freedom” to not record convictions against the company, given they were not sought in the lower court.

Source: Brisbane Times

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