Lyons Construction convicted, fined $50k following OPP appeal
A pedestrian escaped being crushed by just seconds in a hoarding collapse that has seen a building company cop an even bigger fine after an appeal of its original sentence. SEE THE VIDEO
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A Geelong construction company’s fine has doubled to $50,000 after dramatic court vision revealed how close a hoarding collapse came to hitting a pedestrian who walked past just seconds before the timber crashed onto the footpath.
EJ Lyons & Sons Pty Ltd, trading as Lyons Construction, pleaded guilty in May to a single, rolled-up charge encompassing two breaches of the Occupational Health and Safety Act, and were fined $25,000 without conviction.
The breaches related to the “frightening” collapse of a wooden hoarding at a construction site on Moorabool St on December 28, 2022.
Following the sentence, the Office of Public Prosecution appealed, arguing a conviction was necessary to meet the primary sentencing principles of general deterrence and denunciation.
On Thursday, the appeal was heard in the County Court.
The Crown’s lawyer, silk Peter Matthews SC, described the hoarding as an “unmitigated risk” that “no measures” were in place to address.
“Whilst this company has broader health and safety procedures … none of those measures go to this specific risk,” he told the court.
“It’s a matter of sheer good fortune … that no-one was under that hoarding as it fell.”
The court heard that Lyons had received two warnings about the structural inadequacies of the hoarding, which did not comply with Australian standards.
The first in 2021 and the second on December 20, eight days before the collapse, when scaffolding at the site was removed.
The court heard the scaffolding company told Lyons Construction’s site manager the hoarding needed to be braced.
Some preliminary efforts had been made to secure the hoarding prior to the scaffolding being removed, but the court heard “for reasons unknown” the task was not completed.
On December 22, as the site was cleaned and packed up for the Christmas shut down, 16 temporary fences were “inappropriately” leaned up against the scaffolding, further elevating the risk.
Vision released by the court shows how, seconds before the collapse, a man wandered past.
Had he, or anyone else, been under the hoarding, “serious injury would have been inevitable … and death highly likely” the court heard.
The firm’s barrister, Jonathan Manning, highlighted the work the company had done since the accident – which included annual safety audits with international accreditation and covered hoardings.
He said it was not a case of a company “that was wilfully or deliberately avoiding its obligations” and showing “wholesale or flagrant disregard” for its duties.
He noted the scaffolding had been in place for a year, and that no issues were raised with council inspections.
As to the question of conviction, Mr Manning argued a conviction would have a marked economic impact, as the vast majority of the firm’s work involves government contracts and tenders.
In coming to his decision, Judge Gerard Mullaly said he took into account the firm’s early plea, the contrition shown by its directors, the pressures of the delayed prosecution and that the Lyons’ contribution to the community was “genuine and important”.
The company had an “enviable” reputation, Judge Mullaly said and had never been convicted in its long history.
However, he ultimately sided with the prosecution, finding the lack of a conviction “dilutes” the purpose of the sentence.
“Here, it was truly a near miss … given the time and location, and the use of the footpath, many, many were put at risk,” he said, adding the fine issued was “insufficient”.
Judge Mullaly convicted the company and fined it $50,000, plus costs.
Originally published as Lyons Construction convicted, fined $50k following OPP appeal
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