Details of successful prosecution against E212600

Incident description

The defendant company held duties under s.299 (1) of the Work Health and Safety Regulation 2011 being a business conducting high risk construction work.

In March 2015, it contracted to undertake demolition and reconstruction of part of a damaged building. The defendant subcontracted the work to a carpenter. On 22 April 2015, he and his workers commenced removing roof sheeting from the warehouse, working from the confines of a scissor lift. The roof was at a height of over 4 metres. They had difficulty with removal of some sheets, which could not be accessed from the scissor lift. The work could not be performed using a harness, due to the lack of available anchor points. He decided to access the roof relying only on the guard rail of the elevated scissor lift as fall protection. He ascended in the scissor lift with one of his employees and stood in a box gutter.

While attempting to free a roofing sheet, the gutter gave way and he fell 4 metres through the void formed in the timber roof frame to the concrete floor below.

Although he sustained injuries, it is not alleged that they were due to any breach by the defendant company. The investigation revealed it did not have a safe work method statement in place for high risk construction work, namely at a height in excess of 2 metres.

Court result

The defendant pleaded guilty in the Rockhampton Magistrates Court on 12 February, 2018 to breaching s.299 (1) of the Work Health and Safety Regulation 2011, having failed to meet its work health and safety duties and was sentenced.

Magistrate Jeffrey Clarke fined the defendant $5,000 and ordered professional and court costs totaling $1822.79. The court ordered that no conviction be recorded.

In reaching a decision, the Magistrate noted identifiable safety issues relating to workers performing high risk construction work had not been addressed by the defendant.

It had failed to perform a basic task in identifying the risks and control measures associated with the work.

The court had difficulty accepting a submission that the worker, as an experienced subcontractor had the primary obligation regarding his own safety. The onus remained on the defendant to ensure safety at the worksite and to have a safe work method statement prepared, which may well have identified alternative methods of performing the work.

In deciding penalty, Magistrate Clarke took into account that the defendant has now moved out of construction work, and that this was the first prosecution for an offence against safety legislation that the defendant had faced in 30 years of trading.

However, he considered the factors set forth in section 9 of Penalties and Sentences Act, including the need for personal deterrence and general deterrence to others undertaking such work with obvious risks. He noted that the fine had been reduced to reflect that the defendant had pleaded guilty albeit at a late stage.

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 the failure to ensure that a safe work method statement was prepared, before high risk work commenced, duty holders should apply a risk management approach to ensure the selection of suitable control measures.

Risk management involves identifying the hazards, evaluating the consequences and likelihood of harm that may result from the hazard, deciding and implementing control measures to prevent or minimise the level of the risk from the hazard and monitoring the effectiveness of the control measures to ensure they remain working correctly.

When deciding and implementing control measures associated with the high risk construction work, obligation holders should consider:

• Work Health and Safety Act 2011

Details