On 25 July 2024, a company was sentenced in the Maroochydore Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’) when a young worker, 17 years of age, was struck by a falling scaffold component whilst carrying out construction works at a domestic housing construction site on the Sunshine Coast. The young worker received fracture and laceration injury to his head/face.

The injured person worked for a company which undertook carpentry and construction works at various workplaces in South East Queensland. The company had subcontracted to carry out these works and on 21 October 2022 it was in attendance with its sole director and four of its workers at a two-storey residential house.

The dwelling was surrounded by perimeter scaffolding which went from the ground to the uppermost roof level. At around 7:30am the workers were readying to move sheets of cladding from the ground level to the roof level of the dwelling in preparation for attaching that sheeting.

The cladding weighed between 30-40kgs and measured 2.4metres by 1.2 metres in size. The system of work adopted by the director, and instructed to the 4 workers, was to locate two workers on the ground level, with a further two workers on the first floor level of the perimeter scaffold with the director located on the uppermost scaffold deck level. The two workers on the ground lifting and handing the sheet, on the outside of the scaffold, to the first level workers and they in turn lifting and handing the sheet to the director. The injured worker was one of two workers on the ground level.

None of the four workers were wearing hard hat head protection. The director and workers commenced lifting a sheet and as it was handed to the director on the uppermost level and as he maneuvered it, a scaffold component dislodged from the uppermost level deck and fell approximately 5 metres to the ground, striking the young worker in the head. The scaffold component weighed approximately 15 kgs.

Medical attention was sought for the young worker. He sustained a fracture from above his right eyebrow to his right cheek bone; a smaller fracture above his left eyebrow; a broken nose with resultant black eyes; a ‘cross-type’ laceration to his forehead requiring a small number of stitches.

The scaffolding was installed by a sub-contractor engaged by the Principal Contractor and its method of installation was not the responsibility of the carpentry company. An investigation undertaken by Workplace Health and Safety Queensland (‘WHSQ’) inspectors identified a number of toe-boards had been attached to the scaffold at the front of the house with plastic cable ties. This form of attachment is inadequate as the ties can break due to deteriorating as a result of being exposed to the environment or if force is applied to the component.

Under either circumstance the cable tie can break, without warning. The cable ties holding the scaffold component failed as a consequence of a number of factors, including poor installation of the scaffolding using cable ties and the work being conducted by the carpentry company. It is not possible to definitively identify all relevant factors.

The young worker had been previously issued with a hard hat (along with other PPE) prior to the incident though he had not been told by his employer or its directors to wear it on that date.

The workers were exposed to the risk of serious injury or death if struck by falling items, including scaffold components.

Her Honour delivered a written decision wherein her Honour noted the principles set out in the Penalties and Sentences Act underpin her sentencing consideration, observing that general deterrence looms large in WHS prosecution matters stating “employers must be deterred from complacency when it comes to workers’ safety. The duty to provide safe workplaces is an ongoing and proactive duty upon the employer. The courts must impose condign sentences when that duty is not adhered to.” Later, stating (regarding denunciation), “ . . the community expects the courts to impose penalties reflective of the offending that has been committed. The community expect salutary penalties when employers do not adhere to their duty to provide safe workplaces.” Her Honour also considered the serious injury suffered by the young worker when determining the appropriate penalty.

Her Honour accepted defence submissions concerning the lack of regular use of hard hats on domestic housing construction sites as stated in the affidavit of the director of the defendant company which may have led to a degree of complacency in regard to implementing this safety measure by the defendant company. In respect to mitigation, her Honour also took into account the character references submitted on its behalf, including from the injured person who remains employed with the company. Her Honour noted the defendant company had no previous convictions for offending against the WHS Act, was cooperative with the investigation and had demonstrated remorse for the offending.

Her Honour also took in to account the sentencing considerations outlined in the decision of Judge Fantin in Mac Plant and, whilst accepting the prosecution’s submission of the offending falling in the low to mid-range of objective seriousness, considered the circumstances of the offending was closer to the lower than the mid-range.

In imposing sentence her Honour noted the risk is readily identifiable and, accepting the director’s affidavit, the industry lacks implementation of adequate safety measure to minimise the risk from this hazard; particularly when the contravention resulted in serious physical injury sustained to a young, inexperienced worker where the defendant company failed to guard against the risk from the hazard by taking practical steps which were basic and not costly. Her Honour imposed the sentence noted above and exercised her discretion not to record a conviction.

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