On 14 October 2021, a construction company was sentenced in the Brisbane Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its primary health and safety duty under section 19(1) of the Act.

The defendant company is engaged in the business of construction, including construction and renovation of residential premises. At the time of the offence, it was the principal contractor for the construction of a two-storey house at a construction site in Paddington. The company’s sole director did not work onsite daily, but usually attended every few days. As part of the works, the structure under construction was surrounded by perimeter scaffolding which had been erected by a contracted scaffolding company. Only holders of high-risk work licences were permitted to alter the scaffolding.

As part of the contractual arrangement with the defendant company, the scaffolding company would attend the site to perform any alterations to the scaffolding as required or requested. After erecting or altering the scaffolding, the scaffolding company provided a Handover Certificate noting ‘No scaffold to be altered at all only by [scaffolding company] staff’. Prior to the time of the offences, the scaffolding company had attended the site on several occasions to make alterations to the scaffolding. None of the defendant company’s employees on the site held a high-risk work licence and were not authorised to make any alterations to the scaffolding.

The site supervisor and another fully qualified carpenter were employed by the defendant company, working on the site at the time of the offences. The defendant company also employed an apprentice carpenter who was working on the site at the time of the offences. On 22 June 2020, the two carpenters and the apprentice were all working on the site. While the apprentice was offsite, the site supervisor agreed to remove boards from the scaffolding adjacent to level one to enable glaziers to pass door panels up from the ground through the scaffolding to level one, as the glaziers could not get the panels up to level one through the stairwells, nor around the side of the house.

The removal of the boards by the site supervisor and the other carpenter left a void in the scaffolding. Neither worker implemented any barriers or edge protection to prevent anyone from walking into the void, nor did they set up any warning signs. Not knowing that the boards had been removed from the scaffolding, the apprentice stepped into the void and fell approximately two metres to the ground. As a result of the fall, the apprentice lost consciousness and suffered a possible seizure. He was taken by ambulance to hospital and suffered a dislocated right shoulder, traumatic subdural haemorrhage and haematoma, non-displaced temporal fracture and cuts and abrasions.

In sentencing, Magistrate Daley took into account the defendant’s early plea of guilty, its lack of prior convictions and its cooperation with the investigation. Her Honour took into account that the defendant had approved scaffolding on site, but the incident arose at work where scaffolding was removed, and the worker fell through the void in relation to it.

The Magistrate considered general and specific deterrence. Her Honour observed that a significant penalty acts as a general deterrent to send a message to others that failure to comply with work health and safety duties is serious and a matter that must be dealt a significant penalty. Her Honour also considered specific deterrence relevant.

Her Honour acknowledged the defendant’s failure to implement a safe system for moving the door panels to higher ground, failure to implement adequate training, policies and procedures, and failure to implement appropriate and adequate training for working at heights and risks from falls, where the fall in this instance was approximately two metres. The Magistrate accepted that at the time of the incident, the defendant did have a work health and safety management plan for the site, a risk assessment, a job safety analysis and a safe work method statement, however noted that some documents were at the head office and one which was onsite had been damaged by weather.

Her Honour recognised that the defendant had accepted there were deficiencies with respect to implementation of safety systems and clear directions to employees to not alter scaffolding without contacting the appropriate entity. In mitigation, the Magistrate noted that the defendant had taken significant steps after the incident to improve safety systems and accepted its remorse and that it is a small domestic business. Her Honour also had regard to the injured worker’s victim impact statement and noted that he had suffered a fracture to his right shoulder, a haemorrhage and that he was still struggling with mental and physical recovery.

Her Honour convicted and fined the defendant $40,000 and ordered that no conviction be recorded.

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