Finding into death of Bridget Louise Jones

IN THE CORONERS COURT Court Reference: COR 2013 1368

OF VICTORIA AT MELBOURNE FINDING INTO DEATH WITHOUT INQUEST Form 38 Rule 60(2) Section 67 of the Coroners Act 2008 Findings of: JUDGE SARA HINCHEY, STATE CORONER Deceased: BRIDGET LOUISE JONES Date of birth: 10 December 1994 Date of death: 31 March 2013 Cause of death: Head injury

Place of death: Royal Melbourne Hospital, Parkville, Victoria

TABLE OF CONTENTS

Background

The purpose of a coronial investigation

Matters in relation to which a finding must, if possible, be made

• Identity of the deceased, pursuant to section 67(1)(a) of the Act

• Medical cause of death, pursuant to section 67(1)(b) of the Act

• Circumstances in which the death occurred, pursuant to section 67(1)(c)

of the Act Comments pursuant to section 67(3) of the Act

Findings and conclusion

HER HONOUR:

BACKGROUND

1, Bridget Louise Jones (Ms Jones) was an 18-year-old woman who lived at Montmorency with

her parents, Ian and Susan Jones, and brother, Alexander, at the time of her death.

2. Ms Jones was a kind-hearted and respectful young woman who had a strong bond with her

brother and was close to her parents. She enjoyed music and playing sport, especially tennis.

3. At the time of her death, Ms Jones was studying a Bachelor of Arts at Melbourne University and planned to study teaching in the future. She was a high-achieving student’ with a passion

for education.

THE PURPOSE OF A CORONIAL INVESTIGATION

4. Ms Jones’ death constituted a ‘reportable death’ under the Coroners Act 2008 (Vic) (the

Act), as the death occurred in Victoria and was the result of an accident, unexpected and not

from natural causes.!

5. The jurisdiction of the Coroners Court of Victoria is inquisitorial.? The Act provides for a system whereby reportable deaths are independently investigated to ascertain, if possible, the

identity of the deceased person, the cause of death and the circumstances in which death

occurred.3

6. It is not the role of the coroner to lay or apportion blame, but to establish the facts.* It is not the coroner’s role to determine criminal or civil. liability arising from the death under

investigation, or to determine disciplinary matters.

7. The expression “cause of death” refers to the medical cause of death, incorporating where

possible, the mode or mechanism of death.

8. . For coronial purposes, the phrase “circumstances in which death occurred,” refers to the context or background and surrounding circumstances of the death. Rather than being a

consideration, of all circumstances which might form part of a narrative culminating in the

1 Section 4 Coroners Act 2008

2 Section 89(4) Coreners Act 2008

3 See Preamble and s 67, Coroners Act 2008

• Keown v Khan (1999) 1 VR 69

death, it is confined to those circumstances which are sufficiently proximate and causally

relevant to the death.

The broader purpose of coronial investigations is to contribute to a reduction in the number of preventable deaths, both through the observations made in the investigation findings and by

the making of recommendations by coroners. This is generally referred to as the Court’s

“prevention” role.

Coroners are also empowered:

(a) to report to the Attomey-General on a death;

(b) to comment on any matter connected with the death they have investigated, including

matters of public health or safety and the administration of justice; and

(c) to make recommendations to any Minister or public statutory authority on any matter connected with the death, including public health or safety or the administration of

Justice. These powers are the vehicles by which the prevention role may be advanced.

All coronial findings must be made based on proof of relevant facts on the balance of probabilities. In determining these matters, | am guided by the principles enunciated in Briginshaw v Briginshaw.> The effect of this and similar authorities is that coroners should not make adverse findings against, or comments about individuals, unless the evidence

provides a comfortable level of satisfaction that they caused or contributed to the death.

In conducting this investigation, have made a thorough forensic examination of the evidence

including reading and considering the witness statements and other documents in the coronial

brief.

MATTERS IN RELATION TO WHICH A FINDING MUST, IF POSSIBLE, BE MADE

Identity of the Deceased, pursuant to section 67(1)(a) of the Act

On 30 March 2013, Tan Jones identified Ms Jones’ body to be that of his daughter, Bridget

Louise Jones, born 10 December 1994.

14. Identity is not in dispute in this matter and requires no further investigation.

7 (1938) 60 CLR 336

Medical cause of death, pursuant to section 67(1)(b) of the Act

On 2 April 2013, Dr-Michael Burke, a Forensic Pathologist practising at the Victorian Institute of Forensic Medicine, conducted an external examination of Ms Jones’ body.

Dr Burke provided a written report, dated 8 April 2013, which concluded that Ms Jones died

from a head injury.

Dr Burke commented that the post mortem CT scan showed leg, pelvis and skull fractures. He

also noted internal head injuries.

Toxicological analysis of ante and post mortem specimens taken from Ms Jones identified the

presence of morphine, consistent with therapeutic intervention.

l accept the cause of death proposed by Dr Burke.

Circumstances in which the death occurred, pursuant to section 67(1)(c) of the Act

21,

At approximately 2.58pm on 28 March 2013, Easter Thursday, Ms and Mr Jones were walking together along Swanston Street, outside 501 Swanston Street, Carlton, on their way to meet their father to watch an AFL match. At the same time, a strong gust of wind brought down a brick wall onto the footpath (the wall collapse) where Ms and Mr Jones were walking. Witnesses reported that Mr Jones yelled “watch ouf’ to Ms Jones as the wall started to fall and attempted to shield her.

Ms and Mr Jones and Dr Marie-Faith Fiawoo, a French research fellow living in Australia, were all struck by the falling wall and trapped underneath the rubble of the collapsed wall.

A number of witnesses, passers-by and persons in surrounding offices attended the scene of

the wall collapse to render assistance, picking up bricks and removing the rubble from where

they saw the people trapped.

Ms Jones was first to be located under the rubble, followed shortly thereafter by Mr Jones.

At approximately 3.02pm, four ambulance paramedics arrived at the scene of the wall collapse. They commenced to assess Mr and Ms Jones. Mr Jones was assessed as not showing any signs of life and having injuries incompatible with life and was declared deceased at the

scene of the wall collapse.

Ms Jones, who was severely injured but alive, was treated at the scene before being

transported to the Royal Melbourne Hospital.

» 28,

At about the same time, Dr Fiawoo was located a short distance away. At approximately 3.07pm, Dr Fiawoo was asscssed as not showing any signs of life and having injuries

incompatible with life and was also pronounced deceased at the scene of the wall collapse.

At the Royal Melbourne Hospital, Ms Jones underwent emergency neurosurgery.

On 30 March 2013, Ms Jones’ injuries were- confirmed to be non-recoverable and her prognosis very poor. Ms Jones’ parents consented to withdraw Ms Jones’ life support and to

organ donation.

Ms Jones died on 31 March 2013, after her life support was removed.

COMMENTS PURSUANT TO SECTION 67(3) OF THE ACT

Immediately following the wall collapse, WorkSafe Victoria (WorkSafe) commenced an investigation into the event. The WorkSafe investigation ran concurrently with the coronial investigation. WorkSafe provided their investigation brief to the Court at the conclusion of

their investigation.

The Worksafe investigation into the cause of the wall collapse identified the following

matters:

(a) at the time of the wall collapse, the site was owned by Grocon (Victoria Street) Developments Pty. Ltd. (Grocon (Victoria Street)), a subsidiary of Grocon Pty. Ltd.

(Grocon) (although it was sold to Contexx Pty. Ltd. when negotiations concluded on

-28 March 2013);

(b) in May 2011, while the site was predominantly vacant, employees of Grocon (Victoria Street) communicated with Aussie Signs Pty. Ltd. (Aussie Signs), in relation to signage to be affixed with timber hoarding (hoarding) to the wall along Swanston Street;

(c) on 5 October 2011, Doug Capon (Mr Capon), an Aussie Signs employee sent a quote to Nellic O’Keefe (Ms O’Keefc) at Grocon (Victoria Strect) for installation of ply onto

the wall, hoarding, painting and sign-writing;

(d) the hoarding and signage was to be approximately 30 metres long and 3.0 metres high.

Due to the varying height of the wall, the height difference between the top of the wall

and the top of the hoarding varied from 300 to 700 millimetres at various points along

the structure;

{e)

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(g)

(h)

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there was no discussion of or reference to building permits by either party in the

correspondence;

in October 2011, MrCapon subcontracted the sign installation to Thomas Westmoreland, whose sign installation business was JT Hire Pty: Ltd. (JT Hire).

Thomas Westmoreland then subcontracted the job to his brother, Jonathon

Westmoreland (Mr Westmoreland), whose business was trading as Paramount Signs

Pty. Ltd.;

on 11 October 2011, Paramount Signs Pty. Ltd. commenced constructing the hoarding and affixing it to the wall;

on 12 October 2011, a WorkSafe inspector attended the site following a public complaint regarding workers installing the hoarding in an unsafe manner (relating to workers standing atop ‘A frame’ ladders) and without a pedestrian traffic managemetit plan on the footpath. The WorkSafe inspector identified certain workplace safety issues

and deficiencies, which were rectified: the hoarding construction was completed on 14 October 201 1; and

the wall collapsed shortly before 3.00pm on 28 March 2013, when average wind speed in inner Melbourne was over 80km/hr, reaching approximately 100km/hr at the time the

wall collapsed,

Criminal proceedings

On 28 April 2014, WorkSafe filed charges against the following corporate entities:

(@)

(b)

(c)

(d)

Grocon (ACN 006 772 238) for breaches of s.23 and s.26 of the Occupational Health and Safety Act 2004 (OHS Act);

Grocon Builders (Vic) Pty. Ltd. (ACN 133 299 162) for breaches of s.23 and s.26 of the OHS Act;

Grocon (Victoria Street) (ACN 120 542 707) for breaches of 3.26 of the OHS Act; and

Aussie Signs (ACN 006 631 894) for breaches of s.23 and s.26 of the OHS Act.

WorkSafe ultimately withdrew the charges against Grocon and Grocon Builders (Vic)

Pty. Ltd., advising the Magistrates’ Court that it did not believe it could prove that

Grocon (Victoria Street)’s actions caused the wall collapse. WorkSafe revised the charge

against Grocon (Victoria Street) to allege a “non-causal breach” of s.26 of the OHS Act.

The revised charge against Grocon (Victoria Street) alleged that:

(a) . Aussie Signs did not, prior to the attachment of hoarding to the wall, take necessary

steps to ensure that it was safe to attach the hoarding to the wall;

(b) Grocon (Victoria Street) did not check whether Aussie Signs had taken such steps, nor

did it require Aussie Signs to do so; and

(c) the attachment of ihe hoarding to the wall increased the risk that the wall would

collapse.

On Friday, 21 November 2014, having pleaded guilty to one count of a breach of s.26 of the OHS Act, Grocon (Victoria Street) was convicted and fined $250,000.

Aussie Signs was committed to stand trial in the County Court on 9 November 2015. On 4 February 2016, Aussie Signs, having pleaded guilty to breaching s.23 of the OHS Act, was convicted and fined $250,000.

On 29 April 2014, the Victorian Building Authority (VBA) filed charges against Mr Westmoreland for carrying out building work, namely the construction of ‘a timber structure (the hoarding) affixed to a brick wall, when no building permit had been issued or was in force in respect of the work under section 16(1) of the Building Act 1993.

Grocon (Victoria Street) and.Aussie Signs were not charged with offences under the Building Act 1993 as, at the relevant time, it was not an offence for an owner of land to permit building work to be carried out on the land without a building permit. On 4 July 2016, the Building Act 1993 was amended to include s.16(3), which states:

(3) An owner of land must not permit building work to be carried out on that land unless—

(a) a building permit in relation to the work has been issued and is in force under this

Act; and

(b) the work is carried out in accordance with this Act, the building regulations and the building permit issued in relation (o that work.

Penalty: 500 penalty units, in the case of a natural person; 2500 penalty units, in the case of a body corporate.

The decision by Magistrate Gwynn in the matter of VBA v Jonathon Clyde Westmoreland

noted:

“Pursuant to section 17 of the relevant Act, it would appear that it was for Grocon Victoria Square Developments Pty. Ltd. er someone authorised on its behalf to have made the application for a relevant building permit. Section 16 prohibits work being carried out without a building permit having been issued or being in force. It does not concern itself with whose responsibility it is to obtain a permit...

Section 17 confirms that persons such as Mr Westmoreland are not those that can obtain the permit to carry out building works. He is not the one who could hold @ building permit. The obligation on him was to not carry out building work unless the. building permit in respect of the work had been issued and was in force.”

Mr Westmoreland contested the charge, arguing that the work was a temporary structure for display purposes. However, Magistrate Gwynn was satisfied that:

(a) the hoarding was a ‘building’ under the Building Act 1993;

(b) the structure was a sign; and

(c) the sign exceeded the measurements for a temporary structure under the Building

Regulations 2006.

On 22 May 2015, Mr Westmoreland was found guilty of breaching s.16 of the Building Act 1993 and was fined $7,500 with costs agreed in the sum of $26,375.

Prevention opportunities

Al.

» 42.

On 23 July 2015, the Court sought a statement from each of the VBA, WorkSafe, Grocon, Melbourne City Council and later (following the conclusion of criminal proceedings) from

Mr Westmoreland and Aussie Signs. Each party was requested to outline:

“...any regulatory changes or changes to policy and processes made by your organisation or any recommendations made following the deaths and in light of the various prosecutions and investigations, in order to prevent similar deaths from occurring in the future.”

In its response dated 22 September 2015, the VBA confirmed that, in addition to the prosecution of Mr Westmoreland, it had undertaken the following actions:

(a) on 18 April 2013, issued a media release reminding building owners of their responsibility to maintain the safety of buildings and structures on their premises and explaining the manner in which buildings and structures may be professionally assessed.

by registered building practitioners;

§ Section 3, Building Act 1993

44,

(b) on 4 April 2013, written to all registered Victorian building practitioners (approximately

(c)

(@)

20,683), reminding them of their responsibilities and asking them to assess all structures ou sites in which they are involved and to take appropriate action to ensure that all

buildings are safe and secure:

on 4 April 2013, written to all Municipal and Regional Councils in Victoria, reminding them of their responsibilities in relation to the enforcement of the Building Regulations

in their municipality; and

on 24 May 2013, written to ‘the Real Estate Institute of Victoria in relation to the

requirement for building permits for signs, including the exemption requirements.

The VBA also noted that it had numerous Practice Notes that were in effect prior to and at the

time of the wall collapse. Those Practice Notes were relevant to the wall collapse, readily

available on its website and provided that enquiries could be made via the contact details of

the relevant technical officer in the VBA’s Technical and Regulation Unit, which were

provided on the website.

In its response dated 9 February 2016, WorkSafe’s manager, Construction Program, Dermot

Moody, provided a statement, which identified:

(a)

(b)

(c)

@

WorkSafe had not, to his knowledge, made any regulatory changes as it considered that the existing provisions of the OHS Act and Regulations sufficiently articulate the duties

owed to employees and members of the public;

the failure of masonry structures is an issue that WorkSafe has continually sought to reinforce in guidance material, articles and education campaigns with builders and

others in the construction industry over the years;

WorkSafe participates in approximately 20 construction forums every year and the failure of masonry structures is included and discussed as one of the major causes of

fatalities in at least half of those presentations;

policy documents relating to the stability of masonry structures, were (and continued to

be) available on the WorkSafe website; and

(e) following the deaths of Mr and Ms Jones and Dr Fiawoo:

@) in May 2013, WorkSafe developed and implemented a ‘Team Talk-Kit? regarding unstable masonry walls. This is a specific tool for WorkSafe inspectors to use to intervene on all worksites where they consider that there is the potential for

unstable masonry structures to exist; and

Gi) in July 2014, WorkSafe published a Safety Alert entitled “Danger of Freestanding Masonry Walls.’

45. On 18 September 2015, the Court received a response from Aussie Signs, which stated:

(a)

(P)

()

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Grocon (Victoria Street) engaged Aussie Signs to construct advertising hoarding and attach it to the wall and this engagement was specific only to the installation of the hoarding;

Aussie Signs was not requested by Grocon (Victoria Street) to obtain a structural assessment of the wall, nor was Aussie Signs authorised in writing by Grocon (Victoria

Street) to engage a building surveyor and/or obtain a building permit for the works;

Aussie Signs subcontracted the job to JT Hire, to build and construct the hoarding to the wall, as Aussie Signs did not have the relevant expertise. JT Hire, in turn, engaged Mr Westmoreland (trading as ‘Paramount Signs’);

on 10 October 2011, Aussie Signs, in accordance with the directions of Grocon (Victoria Street), provided a Safe Work Method Statement (SWMS) to Grocon (Victoria Street) for their review prior to commencing work on thé hoarding.

The SWMS did not include an assessment of pre-existing structures on Grocon (Victoria Street)’s site;

in the 18 months after the hoarding was installed, Grocon (Victoria Street) carried out various works at the construction site. Archaeological excavations, soil contamination remediation and site excavations to clear rubbish and remove mounds of earth near the

wall continued until the week before the wall collapse;

prior to the wall collapse, but following its installation in 2011, Aussie Signs had already commenced moving its business away from the installation of signs and has not engaged in the installation of signs nor subcontracted the installation of signage to

another business since the wall collapse;

(g)

(h)

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(m)

Aussie Signs has no intention of undertaking future engagements for sign installation and, therefore, it has been unnecessary to implement any changes to internal policy or

processes to address any of the issues arising from the wall collapse;

experts relied upon in the criminal prosecutions against Grocon (Victoria Street) and Aussie Signs stated that it is reasonably open to conclude that the wall would have

collapsed without the hoarding being attached;

it is imperative that structural and risk assessments of pre-existing structures are conducted as early as possible by the owners of land and buildings, to prevent future

tragedies and that responsibility ought not to be transferred;

in circumstances where a building permit or structural assessment has not been obtained, a sign writing company is not in a position to compel the registered proprietor

to obtain a building permit or structural assessment;

sign companies do not generally hold the necessary expertise in determining that a pre-

existing structure is not sound (and therefore that a structural assessment is required);

Aussie Signs is of the view that the responsibility of maintaining a site and assessing structures on a site falls to the site owner and this responsibility should not be eroded;

and ,

Aussie Signs recommends the implementation of a new Code of Practice for the sign manufacturing and installation industry, which specifically addresses and clarifies the

respective obligations of sign writers and occupiers of development sites.

On 7 March 2016, the Grocon entities (Grocon (Victoria Street), Grocon Builders (Vic) Pty.

Ltd. and Grocon) responded to the Court, as follows:

(@)

(b)

setting out a summary of the key matters, including the history of the site, construction of the wall and various work on the site in the period 2006-2013, including inspections,

archaeological investigations, a dilapidation survey, assessments and advertising

signage installation;

stating that the systems which normally applied when Grocon was engaged in undertaking construction works were not implemented at this site because, at the time,

there was no construction work being undertaken. The marketing and other

arrangements relating to the site at this pre-construction stage were being dealt with by

the Grocon (Victoria Street) development team;

(c) in its plea to a breach of safety laws, Grocon recognised that it should have done more

to ensure proper management steps were taken by Aussie Signs;

(d) the Grocon entities and the broader Grocon Group are committed to safety. Following the wall collapse, Grocon has, at a Group level, identified areas in which it can improve

processes to ensure safety matters are properly managed on vacant development sites;

(e) in order to ensure this type of incident can never occur again, Grocon has taken a

number of steps including:

G) reviewing and amending procedures, including expressly confirming the extension of ‘contractor oversight’ procedures (i.e. the monitoring of subcontractors engaged by Grocon to perform work, including temporary work

and non-construction activities on development sites) to Grocon’s development

companies;

Gi) providing additional training and refresher training to personnel including those

with management responsibilities within Grocon development companies; and

(iii) engaging an independent engineer to inspect existing temporary structures on all

Grocon sites, whether they be construction or development sites.

47. On 26 July 2016, the Court wrote to WorkSafe, requesting that they respond to certain matters raised by the Jones and Fiawoo families’ legal representative in their letter dated 5 May 2016, particularly that the family considered that WorkSafe’s site visit on 12 October 2011 was:

“a golden opportunity (which) was missed by the work safety regulator to check, as a

minimum, whether:

(a) all risks associated with the construction of the hoarding had been assessed and controlled as required by sections 20, 21 and 23 af the OHS Act;

(b) risks associated with the construction work had heen eliminated or reduced as mandated by regulation 5.1.7 of the OHS Regulations 2007; and

(c) a building permit had been issued whilst the hoarding was in the process of being

erected.”

48. On 29 June 2017, WorkSafe provided the statement of Barry Dunn (Mr Dunn), Construction

Safety and Prevention Manager, to the Court. Mr Dunn stated that:

(a)

(b)

©)

while following up on a public complaint alleging that there was an uncontrolled falls ' risk and no pedestrian traffic management in place, he made enquiries and observed the

work and concluded that the work was being undertaken in a safe: manner;

he observed that a non-compliant electrical generator was in use, which was then

voluntarily removed fiom service; and

he considered that his approach while at the work site was consistent with the approach

taken by WorkSafe’s inspectors when responding to complaints, in that:

(i) “the priority of inspectors in responding to complaints, is first to determine whether these complaints are valid after which, subject to competing service demands elsewhere, an. inspector will typically seek to take advantage of their presence at the workplace to conduct a general inspection;

Gi) when undertaking a general inspection, more apparent/common occupational hazards or ‘priority areas’ will generally be subject of an inspector’s attention;

(iii) inspectors do not typically make enquiries into matters such as compliance with local council bylaws, planning, or building permits which are granted and regulated by other organisations such as the Victorian Building Authority, Municipal Councils or independent building surveyors; and

(iv) inspectors do on- occasion seek engineering advice and/or verification regarding structures when their integrity or stability appears compromised. However, during my attendance at the worksite I did not observe any conditions that caused me to consider this was justified.”

I note that:

(a)

(b)

(c)

WorkSafe’s primary roles and responsibilities are to ensure workplace safety and to

enforce Victoria’s occupational health and safety laws;

the WorkSafe inspector who attended the site on 12 October 2011 regarding workplace safety concerns raised by a member of the public (which were unrelated to the structural

stability of wall) was not alerted to any obvious structural stability concerns;

the onus to ensuré structural stability of the wall for attachment of hoarding rested with

the owner of the site, which in this case was Grocon;

(d) ()

@

(g)

WorkSafe is not the appropriate regulatory body to police planning or building permits;

in 2016, the Building Act 1993 was amended and ss.16(3) and (4) imposed duties on owners of land, building practitioners and architects to ensure that a building permit is in force and that building work is carried out in accordance with the Building Act 1993, Building Regulations 2006 and the building permit;

under s.16(5), 5.16(3) does not apply if an owner of land engages a building practitioner or architect to carry out the work, reflecting that building practitioners and architects are

more likely to be familiar with regulatory requirements; and

according to Dennis Hogan, Director of Regulatory Development, Victorian Building Commission, none of the exemptions under the Building Regulations 2006 applied to the timber structure so as to exempt it from the requirement for a permit and “if a building permit application had been sought for the work, an engineer would have needed to be engaged to prepare drawings and computations, which would have been able to confirm whether the proposed building work would have been structurally sound

and, in particular, whether the timber structure would have been able to be adequately

supported by the existing masonry wall and timber paling fence.”

As such, I consider WorkSafe’s involvement in relation to the construction of the hoarding

was adequate and appropriate.

I consider that the prevention matters arising from the circumstances of Ms Jones’ death have

been adequately addressed by the introduction. of legislative amendments to s.16 of the

Building Act 1993 and the various regulatory and policy changes of the relevant entities in this

mnatter.

FINDINGS AND CONCLUSION

Having investigated the death, without holding an inquest, I make the following findings

pursuant to section 67(1) of the Act:

(@) (b)

©)

‘the identity of the deceased was Bridget Louise Jones, born 10 December 1994;

the death occurred on 31 March 2013 at the Royal Melbourne Hospital, Parkville,

Victoria, from a head injury; and.

the death occurred in the circumstances described above.

52. [convey my sincerest sympathy to Ms Jones’ family and friends. I also acknowledge Mr and

Mrs Jones’ courageous decision to donate Ms Jones’ organs.

53. Pursuant to section 73(1A) of the Act, I order that this Finding be published on the internet.

54. Idirect that a copy of this finding be provided to the following:

(a) Ian and Susan Jones, Senior next of kin;

(b) Detective Sergeant Peter Rains, Victoria Police, Coroner’s Investigator;

(c) Department of Transport, Planning and Local Infrastructure;

(d) WorkSafe Victoria;

(e) Melbourne City Council; (@ Grocon Pty Ltd;

(g) Victorian Building Authority; (bh) Jonathon Westmoreland; and

(i) Aussie Signs.

Signature:

JUDGE SARA HINCHEY STATE CORONER

Date: 4 June 2018.