The Defendant Company is charged on Information as follows:
FIRST COUNT
Statement of Offence
BREACHEALTH AND SAFETY AT WORK ACT ON SAFE SYSTEM OF WORK: ContrContrary to Section 9(1) of the Health and Safety at Work Act of 1996.
Particulars of Offence
S. KARAN CONSTRUCTION LIMITED, an employer, on or about the 28/4/99 at Thomson Street, Suva in the Central Division, failed to ensure
the health and safety at work of its workers by failing to provide adequate protection from the noise and dust abatement that its
workers were exposed to during the digging process.
SECOND COUNT
Statement of Offence
BREACH OF HEALTH AND SAFETY AT WOR ON SAFE SYSTEM OF WORK: Contrary to Section 9(2)(f)(i) of ) of the Health and Safety at Work Act of 1996.
p class=MsoNormal stal style="margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> Particulars of Offespan>
S. KARAN CONSTRUCTION LI, an employer, on or about the 28/4/99 at Thompson Street, Suva in the Central Division, fan, failed to develop
in consultation with their workers a policy relating to health and safety procedures that would enable effective co-operation between
the employer and the workers in promoting and developing measures that would ensure the worker’s health and safety at work.
On 13th August 2001 the Company pleaded guilty to the Information. The prosecution outlined thts, and said that on the 28th of April
1999 at about 3.30pm.30pm the Company was carrying out construction and demolition work at Thompson Street, Suva. A gazetted health
and safety Inspector, appointed under the Health and Safety at Work Act 1996, Suresh Singh arrived to inspect the site. He found
an employee of the Company, one Tevita Siga using a Makita electric hammer, without using an ear defender or eye protector or respirator.
The noise emanating from the machine was 108 decibels at Mr Siga’s ear level.
Mr Siga told the inspectors that he had received no training for the use of achine, and that he had not been issued with any protectivective
gear.
Mr Singh also found that the Company had failed to provide adequate first aid facilities. Mr Singh then issued a prohibition order
and forwarded it to a director of the Company, one Mr Shyam Karan. Mr Karan refused to accept it.
Mr Singh then further inspected the premises and found other breaches of the Health and Safety Rules which are not tbject of counts
on the Info Information. He further discovered that the Company had no health and safety policy as required by section 9(2)(f)(i)
of the Health and Safety at Work Act of 1996.
The prosecution confirmed that the Company has now issued appropriate protective equipment to machine operators and has a health safety
policy.
The Company agreed to the facts and was convicted on both counts. Counsel for thpany then mitigated saying that the May 19th 2000
crisis hais had adversely affected the building industry, and that the Defendant Company was in dire financial straits. He said that
the Company employed 20-25 men, and that it had not been aware of the implications of the Health and Safety at Work Act. He submitted
that a heavy fine would cripple an already crippled business and asked for a light fine.
Section 9(4) of the Health and Safety at Work Act of 1996 des for a maximum fine of $100,000 in the case of a corporation, on conviction
under sectioection 9.
Both counsel informed me that the Fiji Act is taken from the Queensland Workplace and Safety Act 1995. The um sentence for a similar
olar offence under the Queensland Act is however $300,000. State Counsel provided me with authorities from Queensland, dealing with
breaches of the Act. This is the first case of its kind in Fiji, and therefore there are no local authorities.
In Master Ryane (Qld) Pty Ltd. -v- Thouard (2000) QICa workman employed by the Defendant Company fell through a roof while engaged in erecting aing an aircraft hangar. He died
of injuries sustained in the fall. The employers were convicted of failing to provide a safe place of work under the Workplace Health
and Safety Act 1995. They were fined $35,000 for the offence.
On appeal, the employers submitted that they were now in financial difficulties and had a previous good record. Hall P of the Queensland
Industrial Court said (at page 2):
“The suggested mitigating cirances rely heavily on the appellant’s previous good record. I would respectfully adopt the the well-known
passage in Workcover Authority (NSW) -v- Waugh (1995) 59 IR 89 at 96:- ‘While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance
lies well behind the two primary aspects of the matter, namely the nature uality of the offence and tand the clear policy of the
act in relation of the establishment of safe standards in the protection of the workforce.’
As for the subsequent remorse, business dislocation and the introduction of (for reasons given not wholly adequate) safety measures,
it is sufficient to note that a man has perished and I adopt the observations of Maidment J in Inspector Callaghan -v- Saunders Constructions Pty Ltd unreported, CT 1062/93 at 7.
Commendable though it is to introduce appropriate Occupational Health and Safety measures afte event it needs to be rememremembered
that the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that
workers are afforded safe working environment irrespective of their own laxities.”
The appeal was dismissed. Of course the maximum fine under the Queensland Act is,000 per count and in Master Ryane (supra), ta), the workman was killed. However, the fact that our legislature has seen fit to set the maximum fine at $100,000, is
an indication of how serious breaches of the Act are considered. The policy of the Health and Safety at Work Act, is to protect employees
against the laxity of their employers and from their own actions in their employment. Such employment is often repetitive, and may
involve long hours. Lapses in concentration may be common and employers therefore have a strict duty enforceable by criminal sanctions,
to keep the premises safe from risk.
I take into account the mitigation submitted by Counsel for the Company. I take into account the dol in business due to the crisis
of May 19th 2000, the quickquick compliance after prosecution, the fact that the 1996 Act was still new and untried at the time of
the offence, and the prior good record. Most importantly and due entirely to the diligence of the Health and Safety inspector, no
accident had occurred, and no injuries or fatalities caused by the breach.
Taking all these matters into account, the sentence imposed is as follows:
Count 1 - $10,000 fine to be paid by 31st August 2001;
Count 2 - $5,000 fine to be paid by 31st August 2001.
Nazhat Shameem
JUDGE
At Suva
14th August 2001
Hac0003d.01s
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