Facts
Mr Fergusson was the sole director of a construction company, Jacbe Builders Pty Ltd (Jacbe). Jacbe had been subcontracted to perform work on the construction of a multistorey apartment building in Caulfield in 2013. Mr Fergusson was a registered Builder, though not the principal builder at the site or the holder of the relevant building permit. Floor sheets were ordered by the principal builder and delivered to the workplace in packs.
Mr Fergusson instructed the driver of a crane to lift and place the sheets for the second floor on top of roof trusses from where he and his apprentice intended to unpack and install them. On Mr Fergusson's instructions, the first pack was placed in the centre of the rear trusses, and the second pack was placed on top. Both packs protruded beyond the last truss. The third pack was placed to the right of the others.
Shortly afterwards, the second floor trusses collapsed onto the first floor, which then fell to the ground. Mr Fergusson's apprentice was killed. Mr Fergusson was also significantly injured.
Charges
Jacbe pleaded guilty to an offence under the Occupational Health & Safety Act 2004 (Vic), for failing to provide and maintain systems of work that were safe and without risk to health. The applicable maximum penalty at the time of the contravention was $1,299,240.
Mr Fergusson pleaded guilty to an offence contrary to sections 21 and 144 of the Occupational Health & Safety Act 2004 (Vic) and admitted that, as an officer of a body corporate which contravened section 21 of the Act, the company's contravention was attributable to his failure to take reasonable care. The applicable maximum penalty for Mr Fergusson's offending was $259,848.
Findings
Her Honour Judge Cannon found that this was objectively a serious example of the offence and represented a significant departure from the duties owed by Jacbe and Mr Fergusson. In particular, Her Honour noted that there was a significant amount of guidance material available regarding the relevant risks, such that she was able to find that the risk which materialised was foreseeable. Although the company was a relatively small one, Her Honour noted that the duty holders should have been aware of, and applied, best practice.
In assessing the seriousness of the breach, Her Honour said that she did not assume the breach involved a high degree of seriousness only because of the death which occurred. Rather, the Court assessed the offending as serious because it was very likely that trusses would collapse if overloaded and, as a registered builder, Mr Fergusson should have been aware of the measures that were available to reduce that risk. It was reasonably practical, in Her Honour's view, for Mr Fergusson to have spread the packs of floor sheeting across the trusses, with the financial cost of imposing such a control measure being nothing.
The Court gave considerable weight to the need for general deterrence, and to send the message generally that it is not sufficient to hold a 'she'll be right attitude'. Judge Cannon specially mentioned the need to give effect to just punishment in passing sentence, because she was told at the plea hearing that Jacbe had ceased trading. Her Honour noted that a new company had been formed by Mr Fergusson, that it had building contracts on its books and, it appeared to be viable.
The Court gave weight to Mr Fergusson's plea of guilty, noting that the applicable discount was not as great as it may otherwise have been if he pleaded guilty at an earlier stage. The Court accepted that Mr Fergusson deeply regretted what had occurred. Her Honour noted that Mr Fergusson had no prior or subsequent offences against him and that his family had suffered significant financial hardship as a result of the events. Further to this, Her Honour took into account that Mr Fergusson had suffered injuries in the accident, which was a form of extra-curial punishment.
The Court ultimately imposed a conviction and fined Mr Fergusson $180,000. The judge indicated that but for Mr Fergusson's plea of guilty she would have imposed a fine of $230,000. In respect of the company, the Court imposed a fine $700,000. But for its plea of guilty Her Honour indicated that she would have imposed a fine of $1 million.
Lessons
This case demonstrates a renewed appetite for prosecuting company officers in Victoria, and a preparedness on the part of the regulator and courts to use officers as a vehicle for general deterrence.
The case also points to the need for duty holders to be vigilant in ensuring that they are familiar with, and give effect to, control measures that are recommended in guidance material, with the potential for serious consequences, including very large personal fines, for those who do not take such an approach.
