CRIMINAL LAW — work health and safety — offences — category 2 — demolition work — where falling object struck worker — worker died — failure to properly implement and enforce existing safety and risk control measures — failure to adequately enforce exclusion zone — failure to remove object at risk of falling
SENTENCING — relevant factors on sentence — objective seriousness — circumstances of mitigation — relevance of another duty holder's culpability and established safety measures to objective seriousness — high end of low range of objective seriousness
Quick Take
1Where a PCBU has comprehensive safety management systems in place but fails to implement and enforce them on site, the existence of those systems reduces but does not eliminate objective seriousness; a failure confined to implementation does not render the offence one of low objective seriousness where there is also a higher-level planning omission such as failing to remove a foreseeable falling-object hazard before commencing demolition.
2The culpability of another duty holder (such as a site supervisor with duties under s 28(b) of the WHS Act) does not necessarily mitigate the objective seriousness of the corporate PCBU's offending, because the PCBU remains liable for the acts and omissions of its employees in discharging its primary duty.
3The likelihood of a risk materialising may be assessed as lower where workers are highly trained and experienced, but verbal instructions alone to remain outside an exclusion zone represent the lowest order of control and do not render the risk of non-compliance remote or unlikely.
