Earlier this year Gary Lavin and his company Multi-Run Roofing Pty Ltd (Multi-Run Roofing) were found guilty by a jury of reckless conduct under the Work Health and Safety Act 2011 (Qld) (the Act), following the death of a worker in July 2014.
Mr Lavin was sentenced to 12 months in prison (suspended after 4); the first custodial sentence handed out to an individual in Queensland for breach of the Act. Multi-Run Roofing was also fined $1 million.
The worker, Whareheepa Te Amo, was an experienced roofer employed by Multi-Run Roofing, and fell almost six metres while installing mesh insulation and Zincalume sheeting on the ‘live edge’ of a shed roof. Multi-Run Roofing had been engaged by the principal contractor, Lavin Constructions Pty Ltd (Lavin Constructions), for the completion of the roofing work at the Lake MacDonald factory.
The quote for the work provided by Gary Lavin included the “supplying and installing [of] safety rail.” The Court heard that, to save costs, at no stage between the commencement of roofing work and the death of Mr Te Amo was safety railing installed. Instead, fall arrest harnesses and scissor lifts were implemented to control the risk of workers falling. Mr Te Amo was not wearing his harness at the time of the incident.
The Defendants Multi-Run Roofing, Lavin Constructions and their respective directors, Gary and Peter Lavin were each charged for contravening their duties under sections 19(2) and/or 20 of the Act.
Mr Lavin and Multi-Run Roofing were convicted for committing the Category 1 offence, also known as the ‘reckless conduct offence’, under section 31(1) of the Act. Specifically, for failing to erect safety rails to prevent the risk to workers of death or serious injury from falling from height. The Category 1 offence does not turn on the causing of harm, however it does require the person owing a health and safety duty to engage in conduct that exposes a person to a risk of death or serious injury, without reasonable excuse and doing so recklessly.
In sentencing, Judge Glen Cash QC identified four questions to assist in determining the culpability of the offenders:
- how great the risk was, created by the Defendants’ conduct?;
- how long the risk was tolerated for?;
- how easily the risk could have been eliminated or minimised?; and
- what motivated the Defendants to take the risk?.
With reference to the first matter, Judge Cash found that the risk created by the conduct was “so significant” notwithstanding the competency of the workers and the use of harnesses and scissor lifts as risk controls. Relevantly, Judge Cash said that the safety measures in place were incorrectly contingent upon the diligence of workers, and that the than implementing ‘passive’ or ‘dumb’ measures that could be engaged while on “autopilot” were to be preferred.
The Court heard the risk to workers falling from height appeared to be tolerated for a week, and concluded that Mr Lavin must have been aware the safety rails had not been installed, given the frequency of his site visits. The fact that safety rails were installed swiftly at a low cost following Mr Te Amo’s fall indicated that the risk would could have been easily addressed.
Judge Cash accepted the evidence of two witnesses concluding the decision not to install rail was “one motivated by a desire by Gary Lavin and Multi-Run Roofing to maximise their profits”. In response to installing safety rail, the Court heard Mr Lavin said to one witness [colourful language omitted]:
“…It’ll cost me $10 000 to get this handrail up.”
Mr Lavin was sentenced to 12 months imprisonment, suspended at four months due to his conduct “being so serious …it is appropriate there be a period of time in custody.” Judge Cash observed the impact Mr Te Amo’s death had on Mr Lavin, however noted it was demonstrative of the “inexcusable” risk the Defendants were prepared to take, in the context of modern work health and safety practices.
The Court held that while Mr Lavin’s likelihood of recidivism was low, the need to denounce his conduct involving a “flagrant disregard for proper safety methods” and motivated by profit maximisation, was high. Mr Lavin is the first to receive a non-suspended custodial sentence in Queensland just weeks after Victorian a scrap metal business owner was imprisoned for recklessly endangering and killing a forklift worker in 2017.
Both custodial sentences imposed for reckless conduct reflect the increasing national trend towards investigating and prosecuting individual duty holders under the model WHS laws where there is a workplace fatality.