Details of successful prosecution against E226516

Incident description

The defendant company held duties under s.19(1) of the Work Health and Safety Act 2011 being a construction company conducting building works at various sites throughout Far North Queensland.

In March and April 2016, it was constructing a two-storey house at Kanimbla in Cairns. It engaged a painting contractor to carry out painting work at the site. This contractor had worked on many projects with the defendant. He in turn engaged another painter to assist with the works.

A void area existed between the first level and the ground level of the house. It was approximately 1 metre wide and 2 metres long. The housing construction and painting works were classified as high-risk construction work as defined under the Work Health and Safety Regulation 2011, as there was a risk that workers could fall 3 metres or more.

After discussions between the site supervisor and painting contractor a timber pallet was placed against the vertical face of the void area to act as temporary fall protection. It was held in place using buckets filled with site rubble and water. Sometime after its placement it was removed.

On 1 April 2016 the painter engaged to assist the contractor fell from the void and died.

Court result

On 15 November 2018, the defendant pleaded guilty in the Cairns Magistrates Court 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 Browne fined the defendant $250,000 and ordered professional and court costs totalling $1,596.15. The court ordered that no conviction be recorded.

In reaching a decision, the Magistrate determined the incident was entirely preventable and that the law provides onerous duties on builders when undertaking construction work. The works being conducted were clearly high risk and the defendant's safety plan contained largely generic clauses which lacked specifics for this site. The fall protection was entirely inadequate and failed to comply with statutory guidelines.

In deciding penalty, Magistrate Browne took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered an early plea of guilty. Post incident scaffolding was installed, together with updated safety plans, checklists and registers for each work site. Recent company taxation records also evidenced modest profits. The company has also introduced spot audits and more robust supervision at its sites with the aim of adopting best practice principles.

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 fall from heights, 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 and minimise the level of 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 risk of fall from heights, obligation holders should consider not only the selection of appropriate edge or fall prevention devices, but the monitoring of its status on worksites and the appropriate timing of its removal. Appropriate training, supervision and monitoring of controls is paramount. In addition, where sub-contractors are being used on worksites, extra vigilance needs to be maintained to ensure all duty holders are aware and apply their health and safety obligations.

• 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)

Details