Danger that led to employee injury was ‘obvious and known to the employer’: NSW court

The District Court of New South Wales recently dealt with a work health and safety case involving a construction company that failed to ensure the safety of its workers, resulting in serious injuries to a painter who fell through a void at a residential construction site.

In this case, the court had to determine the appropriate penalty for the employer’s breach of duty under the Work Health and Safety Act 2011 (NSW).

The decision provides valuable insights into the factors courts consider when sentencing employers for work health and safety offences and highlights the importance of implementing adequate safety measures to protect workers from harm.

Background of the case
The employer, a registered corporation that undertook residential and commercial construction projects, entered into a contract to build an upper floor extension to an existing home.

The scope of the works included the construction of a spiral metal staircase, wall framings, roof works, plaster lining works, and painting.

The employer’s director, who was responsible for supervising, coordinating trades, office duties, and trade work on-site, engaged a painting company to undertake the painting works.

The painting company employed a painting manager who carried out painting work on-site, along with two other painters engaged as sole traders.

On 12 October 2021, the director and another employee of the construction company created a stairway void measuring 1.8m x 1.8m on the second level of the house. They covered the void with two plywood sheets that were not securely fixed or strong enough to hold a person’s weight.

The director placed a stepladder, bricks, timber pieces, and a steel balustrade over the plywood, but no signage, barricades, or temporary edge protection systems were put in place.

The workplace accident
According to records, on 19 October 2021, the painting manager and two other painters, including the injured worker, attended the site to commence the painting work.

The painting manager, unaware of the void, instructed the injured worker to commence sanding and painting the windows from inside the house.

The injured worker accessed the second level and stepped on one of the plywood sheets, which gave way, causing him to fall approximately 2.7m to the ground floor below. As a result, he suffered a left tibial plateau fracture and a T-12 burst fracture.

The court’s decision
The court found that the risk posed to workers and other persons by falling from height through the void was obvious and known to the employer.

The employer had a Safe Work Method Statement (SWMS) that identified the risk of a person falling 2.0m or more as high-risk construction work and outlined control measures such as floor sheeting, barricades, signage, and edge protection.

However, these control measures were not implemented or enforced in respect of the void at the site.

The court also noted that the employer had completed a site establishment/pre-commencement checklist, which identified the need for actions such as monitoring contractors’ safety performance and conducting site safety audits, but these actions were not marked as completed at the time of the incident.

In assessing the objective seriousness of the offence, the court considered several factors, including the likelihood of the risk occurring, the simple steps the employer could have taken to eliminate the risk, and the serious injuries sustained by the worker.

The court also noted the need for general deterrence, stating that a “person conducting a business or undertaking (PCBU) must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements.”

Mitigating factors and penalty
The court considered various mitigating factors, such as the employer’s lack of previous convictions, good corporate citizenship, and demonstrated remorse.

The director, on behalf of the company, acknowledged that the employer had a responsibility to ensure the safety of all workers on its sites and that it failed in that responsibility with respect to the incident.

The employer also entered a guilty plea, which entitled them to a 25% discount on the penalty. However, the court was not satisfied that the employer was unlikely to reoffend, given the multiple risks inherent in the construction industry and the strict liability offences under the Act and Regulations.

Considering the employer’s limited capacity to pay a fine, as evidenced by its financial performance in recent years, the court imposed a fine of $75,000, reduced from $100,000 due to the guilty plea discount.

The court also ordered the employer to pay the prosecutor’s costs and that 50% of the fine be paid to the prosecutor, as per s 122(2) of the Fines Act 1996.

Importance of work health and safety
The court reminds employers to take proactive steps to identify and eliminate or minimise risks to workers’ safety, provide adequate training and supervision, and ensure that safety systems are effectively implemented and enforced.

As the court emphasised, “The community is entitled to expect that both small and large businesses will comply with safety requirements.” Failure to do so can result in serious consequences for workers and significant penalties for employers.

Some key lessons include:

  • Conducting thorough risk assessments and implementing appropriate control measures to eliminate or minimise identified risks.
  • Providing comprehensive safety induction and training to all workers, including subcontractors, and ensuring that safety information is effectively communicated.
  • Regularly monitoring and enforcing compliance with safety policies, procedures, and safe work method statements.
  • Encouraging a strong safety culture within the organisation and leading by example.

The court’s decision in this case highlights that “PCBUs must take the obligations imposed by the Act very seriously” and that “general deterrence is a significant factor when safety obligations are breached.”

Source: HCA Magazine

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