Inspector David Clyant v Birzulis Associates Pty Ltd [2004] NSWIRComm 380

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector David Clyant v Birzulis Associates Pty Ltd [2004] NSWIRComm 380 PROSECUTOR: Inspector David Clyant PARTIES : DEFENDANT: Birzulis Associates Pty Ltd FILE NUMBER: IRC 6252 of 2003 CORAM: Haylen J CATCHWORDS : Occupational Health and Safety Act 2000 - s 8(2) - plea of guilty -construction work undermines and destabilises adjoining building - failure to temporarily support wall of adjoining building - failure of builder to follow engineering advice - adjoining wall collapses and building demolished - no workplace injuries - serious offence - subjective factors lead to significant discount on penalty - penalty imposed HEARING DATES: 11/29/2004 DATE OF JUDGMENT: 12/10/2004

PROSECUTOR: Mr O'Neil of counsel SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mr B. Hodgkinson SC and Mr R Hollo of counsel SOLICITORS: Moray & Agnew

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: HAYLEN J 10 December 2004

Matter No. IRC 6252 of 2004 Inspector David Clyant v Birzulis Associates Pty Limited. Prosecution under s 8(2) of Occupational Health and Safety Act 2000. JUDGMENT [2004] NSWIRComm BACKGROUND 1 In July 2001, approval was given for reconstruction of an extension of an existing building at 82 Parramatta Road, Camperdown. The development involved the demolition of an existing hotel structure and part excavation of the premises. The adjacent premises at 84 Parramatta Road, Camperdown was a two-storey building operating as Central Autohaus. As the excavation proceeded a crack appeared in the Autohaus premises and a complaint was made to the construction site manager. 2 Birzulis Associates Pty Ltd, the defendant in these proceedings, were structural engineers who were retained for the purposes of this development. During the course of excavation employees of the defendant including Aldis Birzulis attended the site and also consulted with the proprietor of Autohaus, a Mr Marcos. Mr Marcos became concerned about further cracking to his building and movement of the building causing doors to jam and engaged his own structural engineer Mr Byatt to inspect the premises and to engage in discussions with the defendant as to remedial action. 3 Between 2 November and 23 November 2001 there were a number of discussions between the defendant, representatives of the developer and Mr Byatt acting for Mr Marcos and Autohaus as to how to address the cracking and movement problems evident in Autohaus. Ultimately an agreement was reached that a certain style of raked support would be provided to the western wall of Autohaus. Work had commenced on that support system and the raking support was to be installed in the week beginning 26 November 2001. However, on 25 November 2001, while there were no workers present at the site the wall collapsed and ultimately, at police direction, the building was demolished. 4 As a consequence of an investigation of these matters Inspector Clyant commenced proceedings against the defendant under s 8(2) of Occupational Health and Safety Act 2000. A plea of guilty was entered by the defendant and this judgment deals with the submissions on penalty. THE CHARGE AND THE EVIDENCE 5 At the hearing a further amended Application for Order was filed in Court. As amended the charge alleged that the defendant being an employer did fail between 2 November 2001 and 23 November 2001 at premises located at 82 Parramatta Road Camperdown to ensure the health safety and welfare at work of all the employees of the defendant and in particular Michael Andrew Grogan and Andrew James Brooking.