Details of successful prosecution against E186255

Incident description

On 3 August 2013, a worker fell approximately four metres from an exposed edge on the first level of a unit complex being constructed and sustained fracture injuries to their right elbow and pelvis which required pinning and plates.

The defendant company building the unit complex, Prosaturn Pty Ltd had engaged a sub-contractor to undertake concrete pumping.

Prosaturn Pty Ltd were responsible for the installation of perimeter scaffolding to provide edge protection before concrete pumping commenced. They were aware the sub-contractor was accessing the upper second level to carry out this work before scaffolding was installed, but took no action to prohibit the activity.

Court result

The defendant pleaded guilty on the morning the matter was set down for trial in the Holland Park Magistrates Court (20 May 2016) to breaching s. 32 of the Work Health and Safety Act 2011, having failed to meet its work health and safety duties and was sentenced.

Magistrate Sheryl Cornack fined them $60 000 and ordered professional and court costs totaling $2843, together with witness expenses of $525. A conviction was recorded.

In reaching a decision, the magistrate noted that it was a late plea of guilty after the matter was listed for trial to commence that morning. Her Honour noted that the hazard was obvious and readily managed through a safe system (scaffolding) that could have been put in place.

There was a significant difference from comparable matters relating to working at height in that the defendant company had made little attempt at putting controls in place. Magistrate Cornack stated she found it difficult to accept the defendant's assertion on the low profit received from undertaking the building work. Her Honour also considered the circumstances of the breach were such that the QBCC may have interest.

In deciding penalty, Magistrate Cornack took into account the defendant had not been prosecuted previously for any work health and safety breach, however the circumstances augured towards the recording of a conviction.

Considerations for prevention

(commentary under this heading is not part of the court's decision)

When working in the construction industry where there is exposure to risks from falls from heights, duty holders should apply a risk management approach to ensure the selection of suitable control measures.

• Work at heights
• Scaffolding
• Falls
• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011
• Managing the risk of falls at workplaces Code of Practice 2021 (PDF, 3.9 MB)
• Scaffolding code of practice 2021 (PDF, 1.63 MB)

The Work Health and Safety Regulation 2011 sets out specific control measures that are required where there is a risk of a fall of at least:

• three metres in housing construction work
• two metres in other construction work.

Details