Seventeen-year-old Alex D’Agostino was helping with the construction project at a Henley Beach building site. On his first day on the job in 2011, he was helping pour concrete on the top floor when he accidentally fell backwards onto some wood planks that were placed over an open elevator shaft.
The teenager was rushed to the Royal Adelaide Hospital where he stayed confined for the next two weeks. D’Agostino suffered serious injuries, including damage to an eye, a fractured femur, a back injury, chipped teeth, and deep lacerations to the head.
In his appeal judgment last week, Senior Judge William Jennings said the boy could have been killed. He added that the boy continues to suffer physical pain, reduced mobility, and post-traumatic stress disorder.
In the original case, Judge Stephen Lieschke of the Industrial Relations Court ordered construction company Bellard Pty Ltd to pay a fine of $100,000 last years—taking into account a 20% reduction with the early guilty plea presented.
As part of the work health and safety penalty, Bellard was ordered to publish a notice detailing the incident in building and housing magazines as well as The Advertiser.
Prior to the incident, Paul Bellardino, Bellard founder and manager, came to the site, where he discovered that there was no covering over the empty spaces on the side of the building that was supposed to be concreted. He found the structural planks nearby and placed them loosely over the opening of the elevator shaft. No further action was implemented to secure the planks or cover the remaining gaps.
D’Agostino was not directly employed by Bellard. Abbatiello Parella Foundations was hired by Bellard to work on the site. It was Abbatiello Parella Foundations who contracted Elite Concrete Pumping that employed D’Agostino.
For his judgement, Lieschke investigated the circumstances surrounding the issue whether Bellard was as contrite for its offending as it earlier claimed, having not paid reparations to D’Agostino, other than the courtesy of a gift basket they brought to the hospital and having called out a legal objection in court to the reading of victim impact statements.
Eventually, Lieschke found that merely putting in place planks loosely over the top of the lift shaft was completely inadequate. He further ruled that while Bellard was generally aware of the dangers of voids, they still had no clear regulation as to who was to be held accountable for implementing a hazard identification and risk assessment of the workplaces in the project’s building site.
The Industrial Relations Court judge also found the company to have worked in cooperation with Safework SA and that the said incident was the first serious injury reported at any of the company’s project sites.
But Senior Judge William Jennings had a different perspective to the issue. Last week, the senior judge decided that with the errors in Lieschke’s judgement reducing the initial fine to $87,000 was necessary.
He added that no proper evidence was presented so as to reject Bellard’s submission of genuine contrition, explaining further that the original judgement lacked the required transparency about what would have been the appropriate fine, had the order to publish the print notices about the incident not been undertaken.