Background
The Offender is a sole trader and roof plumber.
On 19 February 2024, roofing works were being undertaken at the Highett Neighbourhood Community House, Highett (the Highett NCH).
During the performance of the roofing works, a person was invited by the Offender to perform roofing works with him as paid work-experience (the Injured Person). While performing work-experience, the Injured Person fell through a skylight on the roof of the Highett NCH, landing approximately 3.58 to 3.85 metres on the internal floor below (the incident).
The Injured Person was transported to the Alfred Hospital and underwent surgery. As a result of the incident, he was rendered paraplegic.
Bowitt Group Pty Ltd was the company contracted to conduct the roofing works at the Highett NCH, which included the removal of existing roof sheets, supply and installation of new roof sheets, and associated fall protection and other safety measures connected with the work. Bowitt subcontracted JS Roof Plumbing Pty Ltd to perform the work. On the afternoon prior to the incident, JS Roof Plumbing subcontracted the Offender to perform some of the work. On the same day, the Offender arranged for the Injured Person to perform work-experience with him.
The work being performed constituted High Risk Construction Work (HRCW), as it was construction work which was being performed in circumstances where there was a risk of a person falling more than two metres (through one of several skylights situated on the roof). The Offender prepared a SWMS for the HRCW to be undertaken at the Highett NCH. Under the header ‘Cutting and lifting sheets onto roof’, the SWMS identified ‘fall from height’ as a risk, and ‘ensuring fall protection is in place’ as a control. The SWMS did not mention skylights.
On the morning of 19 February 2024, the Injured Person attended at the Highett NCH. Upon arriving, he climbed onto the roof with the Offender and another person, and started working. The Injured Person was not provided a site induction, and was not taken through the SWMS. Neither the Injured Person, the Offender nor the other worker were wearing harnesses at the time of the incident.
To the extent that the SWMS identified hazards or risks associated with falls from heights, the Offender failed to perform the work in accordance with the SWMS, in that the work was performed without fall protection in place.
The Offender provided a statement to WorkSafe at an early stage in the investigation following a caution.
Sentence
In sentencing the offender, the Court noted that:
- The offender was self-employed, and was performing HRCW;
- The injured person was performing work-experience;
- There were subcontracting arrangements in place;
- A SWMS had been created, but the injured person was not instructed on it, nor were they protected from the risk of falling through a skylight by guard rails, barriers or a harness;
- The consequences were catastrophic for the injured person. A VIS was provided to the Court which was taken into account;
- The offending is based upon the risk, not the consequences;
- The offending was mid-range;
- There was a reasonable likelihood of the risk occurring, resulting in serious injury or death;
- The Offender had only just started his business prior to the offending;
- There was a delay of 18 months pre-charge;
- There was an early plea of guilty, with significant utilitarian benefit;
- Other companies were also charged;
- Specific deterrence was not relevant;
- General deterrence was crucial. Others must be deterred in the industry;
- The maximum penalty for the offence was approximately $346k;
- Comparable cases were considered. All involved fines imposed against companies.
The Court sentenced the Offender to pay a fine of $50,000, without conviction, as well as costs in the amount of $4,438.
In accordance with section 6AAA of the Sentencing Act 1991, his Honour indicated that but for the plea of guilty he would have imposed a fine of $80,000, with conviction.
Source: WorkSafe Vic
