Prosecutions 2005 (PDF 3269kb) - WorkSafe Victoria

HEALTH AND SAFETY APPEALS
ACR ROOFING PTY LTD
Date of offence: 29 October 1999
Date of appeal:
Justices:
Plea:
11 March 2005 at High Court of Australia
The Honourable Justice McHugh and The Honourable Justice Haynes
Not guilty
On 11 March 2005, the High Court of Australia dismissed an application made by ACR Roofing
Pty Ltd, seeking special leave to review the decision of the Court of Appeal of the Supreme Court
of Victoria delivered on 1 December 2004. The High Court of Australia was not persuaded that it
was reasonably arguable that the Court of Appeal of the Supreme Court of Victoria was wrong to
conclude that there had been no substantial miscarriage of justice in this case.
On 1 December 2004, the Supreme Court, Court of Criminal Appeal dismissed an appeal made by
ACR Roofing Pty Ltd (ACR) against its conviction and fine of $60,000 after a trial at the County Court
in relation to a breach of sections 21(1) & (2)(a) of the Occupational Health and Safety Act 1985. The
case involved an employee who died at a Port Melbourne building site on 29 October 1999.
The Court of Appeal heard that in October 1999, ACR was to erect and install a roof, including
the installation of roof safety mesh. After the roof beams and purlins were installed and some,
but not all, of the safety mesh was secured in place, ACR contracted another company, Associated
Rigging Pty Ltd, to lift and install packs of steel roof sheets onto the purlins. ACR was then to install
the sheets.
Shortly before 29 October 1999, Associated Rigging Pty Ltd contracted James Cranes Pty Ltd to
provide a crane, crane driver and dogman to carry out the work. When the lift was under way, the
dogman who handled a pack of roof sheets suspended from the crane was fatally electrocuted and
fell to the concrete floor from a height of about seven metres.
James Cranes Pty Ltd and the crane driver were acquitted of alleged breaches of the Occupational
Health and Safety Act 1985 after a County Court trial in February 2004.
The Court of Appeal ruled that there was no substantial miscarriage of justice. It determined that
although James Cranes Pty Ltd did not have a contractual relationship with ACR, ACR nevertheless
had a duty to provide and maintain a safe working environment over matters which it had control,
not only to its direct employees but also to the employees of James Cranes Pty Ltd.
The Court of Appeal stated that ACR had control over the erection of safety mesh and failed to do
what was practicable to ensure that the safety mesh was installed before the work commenced or
else did what practicable to ensure the use of fall restraints.
The principal contractor/employer was aware both of fact that the independent contractor was
engaged in substitution for Associate Rigging and of the identity of the contractor.
Breach: Sections 21(1) & (2)(a) of the Occupational Health and Safety Act 1985.
Result: Application for special leave to appeal to the High Court of Australia dismissed.
PROSECUTIONS 2005
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