On 25 September 2024, a licenced asbestos assessor (‘the Defendant’) was found guilty in the Toowoomba Magistrates Court for breaching section 33 of the Work Health and Safety Act 2011 (‘the Act’), having failed in his duty under section 19(2) of the Act. The Defendant, as a sole trader, failed to ensure that the health and safety of other persons was not put at risk by the work carried out as part of his business or undertaking.

The Defendant was engaged by an asbestos removal company to sign off on the removal of asbestos backed vinyl sheeting from a room at the Baillie Henderson Hospital in Toowoomba.

The Court heard that the flooring removed comprised of a vinyl top layer with asbestos millboard backing, which is typically 80% to 100% asbestos. This type of asbestos is classed as ‘friable’ and requires Class A methods to remove safely. The Defendant was aware that Class B removal methods had been used and upon his attendance at the Hospital on 7 September 2021 the floor was still wet from the removal.

The Defendant did not wait for the floor to dry before he performed his inspection and provided a clearance certificate, certifying that all asbestos had been removed from the room. When other contractors have attended to lay the new flooring, they observed glue residue to still be present in the room and raised concerns that not all of the asbestos had been removed. Further testing confirmed that chrysotile asbestos remained in the room, with seven samples, made up of floor fragments and samples of the glue all testing positive.

The Defendant did not contest that there was still asbestos remaining in the room after the certificate was issued, but rather submitted that the type and amount of asbestos remaining in the room was not capable of posing a risk to a person’s safety.

Magistrate Morice accepted the evidence of the prosecution witnesses that asbestos is a non-threshold genotoxic carcinogen and that the asbestos remaining in the room was capable of being disturbed such that there was a risk of fibres becoming airborne and persons being exposed to them.

Her Honour found that the risk posed by the asbestos remaining in the room was not merely a perceived risk, but an actual risk. Her Honour accepted that the Defendant did not properly appreciate the true state of the floor due it still being wet, but her Honour found that it would have been reasonable for him to wait for the floor to dry before carrying out the inspection.

The Defendant was found guilty of committing the offence.

In sentencing, Magistrate Morice had regard to the sentencing principles in sections 9 and 11 of the Penalties and Sentences Act 1992 as well as the circumstances of the offending. Her Honour noted that deterrence loomed large in the consideration of the penalty to be imposed, though considered that specific deterrence may be of less weight given the Defendant no longer practices as an asbestos assessor.

Her Honour took into account the seriousness of the offending. However, her Honour noted that the risk was for a limited period of time and that it was discovered by the first people to enter the room after the removal and before any work on the floor had been carried out.

In mitigation, her Honour took into account the Defendant’s medical issues, the fact he had a relationship breakdown shortly before performing the inspection, the loss of income he suffered due to the loss of his licence because of this incident, and his limited capacity to pay.

In considering all of the circumstances, her Honour found that the appropriate penalty was a fine of $7,000 plus costs.

OWHSP contact: enquiries@owhsp.qld.gov.au