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Fine reduced over teenage worker’s lift shaft fall

Apr 27, 2015

A construction company which was fined $100,000 after a teenage worker fell eight metres down a lift shaft has had its penalty reduced on appeal.

Alex D’Agostino, then 17 years old, was helping pour concrete on the top floor of a Henley Beach building site, on his first day on the job in 2011, when he fell backwards onto one or more planks of wood placed over an open elevator shaft.

The planks bounced and separated, and he fell to the bottom of the shaft.

D’Agostino was taken to the Royal Adelaide Hospital, where he remained for two weeks. He suffered serious injuries, including deep lacerations to his head, five chipped teeth, a back injury, a fractured femur and damage to an eye.

“He could have been killed,” said Senior Judge William Jennings said in his appeal judgement, released last week.

D’Agostino continues to suffer post-traumatic stress disorder, reduced mobility and physical pain, the judgement says.

In the original case, Industrial Relations Court Judge Stephen Lieschke last year ordered construction company Bellard Pty Ltd to pay a $100,000 fine, after a 20 per cent reduction because of an early guilty plea.

Bellard was also ordered to publish a notice about the incident in The Advertiser, and in building and housing magazines.

Before the incident occured, Bellard founder and manager Paul Bellardino arrived on site, where he found that there was no covering over the voids on the side of the building that was about to be concreted.

He found three 30cm wide structural planks nearby and loosely placed them over the 1.4m by 1.4m lift shaft opening. No further attempt was made to cover the remaining gaps or to secure the planks.

Bellard did not employ D’Agostino directly, but engaged Abbatiello Parella Foundations to work on the site, which in turn engaged Elite Concrete Pumping, which employed D’Agostino.

In his judgement, Lieschke queried whether Bellard was as contrite for its offending as it claimed, having not paid reparations to D’Agostino, apart from a gift basket brought to the Hospital by the Bellardinos, and having made a legal objection to the reading of victim impact statements in court.

Lieschke found that placing three narrow planks loosely over the top of the shaft was grossly inadequate.

He ruled that that whilst Bellard was generally alert to the dangers of voids – and had adopted a practice of securely covering and fencing voids following the incident – the company still had no clear policy as to who was responsible for conducting a hazard identification and risk assessment of its building site workplaces.

Lieschke also found Bellard had cooperated with Safework SA, and that the incident was the first serious injury at any of Bellard’s sites.

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But Senior Judge William Jennings last week ruled that there were errors in Lieschke’s judgement, and reduced the fine to $87,000.

Jennings said there was no proper evidence for Judge Lieschke’s to reject Bellard’s submission of genuine contrition, and that the original judgement lacked transparency about what the fine would have been, had the order to publish notices about the incident not been made.

Bellard’s counsel argued that steps taken by the company to upgrade, review and improve all safety procedures following the incident reduced the need for a specific deterrence.

Jennings also said the publication of the notices was not required.

SafeWork SA Acting Executive Director Marie Boland could not comment on the specific case, but said workplace injuries resulting from falls from buildings and other structures in South Australia had almost doubled in recent years, with six recorded in 2013 and 11 in 2014.

“It’s important to remember that young workers can be vulnerable and it’s important to keep them safe through effective induction, training and supervision,” she said.

“Most injuries can be prevented by simple measures including safe work procedures, training and reviewing safe systems of work on a regular basis – invest the time to keep your workplace injury-free.

“The maximum fine for breaches of this kind is $300,000 –this case is a reminder to others of the potential risk to lives of unsafe work practices, and the potential high fines if adequate safety is not in place.”

Earlier this month, Clare-based shed manufacturer IKC Sheds Pty Ltd was fined in the Magistrate’s Court after one of its workers fell  through a polycarbonate roof, injuring his back.

In that case, the magistrate indicated he would have imposed a $145,000 fine for breaches of occupational health and safety legislation, but applied a 40 per cent reduction for a guilty plea and a further reduction due to the defendant’s plea of financial hardship.

InDaily contacted Bellard’s legal counsel for comment.

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