In the 2009 decision of Spinks v M Dekker Constructions Pty Ltd, the South Australian Magistrates Court reduced a penalty imposed on an employer from $72,000.00 to $20,000.00 in light of the employer's financial hardship.
The defendant, Dekker Constructions Pty Ltd (Dekker) was performing building and construction work for the Ahrens Group. Dekker was contracted by the Ahrens Group to construct a warehouse and, at the time of the event, was in the process of lifting roof panels into place. On 2 March 2006, a section of the roof steel structure collapsed injuring 4 workers.
The technique used by Dekker for lifting the roof panel sections involved using cranes operated by Nicks Crane Services. The roof sections would be lowered onto columns by two cranes and the employees of Dekker would go up in scissor lifts and bolt the roof sections to the columns. One crane would then release its load and move away, and the second crane would remain without releasing its load until employees of Dekker had tied on bracing purlins, securing the newly erected roof structure to the existing construction. Once the purlins had been tied back and braced, the second crane would release its load and move away to get ready for the next lift.
However, on the day of the accident, after the first crane unhooked and moved away, the second crane remained holding the load in an awkward position. Due to the position of the second forklift, the scissor lifts were not able to get around the crane to go up and tie the bracing purlins. Consequently, the second crane unhooked and released its load so that the Dekker employees could go up and tie the bracing purlins. However, a gust of wind caused the frame to move unexpectedly, resulting in a section of the roof which had just been installed, to collapse.
After the incident, an engineer was appointed to investigate the cause of the accident. The primary cause of the incident was found to be a lack of bracing. It was also accepted that Dekker's procedure was unsafe because it did not cater for problems which might arise during the lift. The Court also found that whilst a Job Safety Analysis (JSA) had been performed by a Director of Dekker on the morning of the accident, the JSA did not provide any clear direction to the workers as to when cranes should release their load.
In sentencing Dekker for a breaches of the Occupational Health and Safety and Welfare Act 1986, the Court took into consideration the company's early plea of guilty, the employer's safety record (including the fact that they had no prior convictions and only two relatively small workers compensation claims), and the remorse shown by the employer. The Court also noted that following the accident, Dekker implemented additional measures to prevent the incident occurring again, including the employment of another person to act as second in charge and the creation of safe work methods for every job undertaken. The employer also revised its JSA and each employee was required to sign and indicate that they have read and understood the JSA before commencing work.
The Court took into account the enormous financial strain on Dekker's business resulting from the event. Specifically, evidence submitted to the Court was that Dekker's financial position was poor, having traded at a loss during the financial year ending 30 June 2008, and that there were real doubts about the company's ongoing financial viability.
Out of a possible penalty of $100,000.00, the court imposed a fine of $90,000.00 discounting it by 20% having regard to the early plea of guilty, resulting in an actual fine of $72,000.00. However, the Court ordered payment of a lesser amount, namely $20,000.00 after considering the company's dire financial status and the provisions of the Criminal Law (Sentencing) Act 1988.
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