Inspector John Patton v Darren Paul Mercer [2010] NSWIRComm 111

Industrial Court of New South Wales

CITATION: Inspector John Patton v Darren Paul Mercer [2010] NSWIRComm 111

PARTIES: Inspector John Patton (Prosecutor) Darren Paul Mercer (Defendant)

FILE NUMBER(S): 2081 of 2008

CORAM: Backman J

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000

CASES CITED: Inspector John Patton v Romeo Elias Ibrahim and Others [2010] NSWIRComm 109 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449

HEARING DATES: 3 February 2010

DATE OF JUDGMENT: 9 August 2010

Mr I Taylor of counsel (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: (Mr D Hall)

Mr D Mercer (self-represented Defendant)

JUDGMENT:

- 27 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Backman J

­­­­­­­Monday, 9 August 2010

Matter No IC 2081 of 2008

Inspector John Patton v Darren Paul Mercer

Prosecution pursuant to section 8(2) by virtue of section 26(1) of the Occupational Health and Safety Act 2000

JUDGMENT OF THE COURT [2010] NSWIRComm 111

Preliminary matters 1 Darren Paul Mercer has pleaded guilty to one offence under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 (2000 Act). At the time of the offence on 18 November 2006, Mr Mercer was the sole director of Colmerc Projects Pty Limited (Colmerc) which was the principal contractor at a construction site in Kiama, New South Wales. Colmerc, the Court was informed, is under external administration. Mr Mercer was the site manager and construction manager. His responsibilities included the day to day operation of Colmerc's operations at the site. 2 The offence concerns an incident which occurred at the construction site in Kiama on 18 November 2006 when Mohammed El Gendy, a 24 year old labourer, was crushed by a concrete block wall after it collapsed. Mr El Gendy suffered very serious injuries as a result of the incident which included multiple fractures to the base of his skull. Agreed facts 3 The project under construction at the site was a multi-storey hotel and convention centre, known as "Kiama Blue", a three-stage development located in Kiama. The project was under the control of Colmerc as the principal contractor. The first stage of the project entailed the construction of residential units, a restaurant, brasserie, and a shop, which had been completed in early 2006. Stage Two involved the construction of a motel complex (serviced apartments) built over three basement levels and four hotel levels. Stage Three involved the renovation and conversion of an existing old heritage-listed school building into a convention and function centre. Stages Two and Three were run concurrently, with the incident occurring during Stage Two. The value of the construction work for Stage Two was about 12 million dollars. 4 In Stage Two of the project, the building was being constructed in two halves because of the post-tensioning of the concrete floors. A concrete pour step was poured between the two floor slabs after the two slabs were tensioned. The strip divided the building into two halves designated as west and east. The ground floor hotel level on the west side, designated "H1 West" was the site of the incident. 5 A number of other corporate entities and businesses were involved in the project. These entities and businesses are listed below: a. Multi-Formwork & Hire Pty Ltd , concrete package sub-contractor; c. REI Construction Pty Ltd , sub-contractor to Multi-Formwork & Hire; d. A1 Formwork (Aust) Pty Ltd , sub-contractor to REI Constructions; e. B-Stress , post-tensioning concrete contractor to REI Constructions; f. DJJ Construction Pty Ltd , concrete placement and steel fixing; g. Kajima Construction Pty Ltd , supervision contractor; h. Talon Lock Enterprises Pty Ltd , supervision contractor; i. O & H Construction Pty Ltd , labour hire; j. JML Bricklaying , Bricklaying contractor. 6 The agreed facts provide some further detail with regard to some of the sub-contractors. These details I have attempted to summarise below: