On 14 March 2022, a property management company was sentenced in the Southport 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 s19(1) of the Act. The defendant company pleaded guilty to the charge. Her Honour Magistrate Balic imposed a fine of $60 000. A conviction was not recorded.

The defendant company managed a warehouse on the Gold Coast. In early April 2020, a temporary elevated platform was built within the warehouse to enable contractors to perform renovation works at a height.

The platform was built by an employee who held the role of head of maintenance. The platform did not comply with, and was not constructed with reference to, relevant codes of practice or the Australian standards. The platform consisted of two aluminium planks, which ran along the warehouse wall, at a height of three metres from the concrete floor below. One end of the platform rested on a mezzanine floor, accessible by a stepladder. The other end of the platform rested on a frame that an employee constructed using timber and a nail-gun. That frame was secured to a cabinet using two F-clamps. The frame extended approximately 90 centimetres above the cabinet forming a handrail. No other controls were in place to manage the risk of falling from the platform.

On 12 May 2020, a subcontractor engaged by the defendant company attended the warehouse to perform plastering work and prepare the wall of the mezzanine floor. The subcontractor was shown the work area, including the mezzanine and temporary platform. The subcontractor was assured by the company’s head of maintenance that the platform was safe because it had been used by other people, including another subcontractor during the preceding three weeks.

While the subcontractor was using the platform to do plastering work on the mezzanine wall, the timber frame supporting the aluminium planks gave way. As a result, the subcontractor fell three metres to the concrete ground below. He sustained injuries including a compound fracture to his left ankle, for which he underwent multiple surgeries for debridement, skin grafts and the insertion of a screw to affix the fracture. There had at one time been a real concern that amputation of the subcontractor’s leg may have been required. He spent several weeks in hospital.

An investigation was commenced by Workplace Health and Safety Queensland and the defendant company was issued with prohibition and improvement notices. By May 2020, the defendant had complied with the notices by ceasing the use of the temporary elevated platform, acquiring an electric scissor lift, and preparing a safe work method statement which, among other measures to ensure safety, mandated the use of the electric scissor lift when working at height.

In sentencing the defendant, her Honour Magistrate Balic observed that the company was a small company and the subject work incidental to their usual business. The employee who constructed the platform held the role of head of maintenance and had construction industry experience such that there was no reason for the defendant company to doubt his skill level. The employee had considered other alternatives to the temporary elevated platform, including a scissor lift, but did not identify any issue with the temporary elevated platform. There was no suggestion that the aluminium planks themselves were unfit for purpose. To the untrained eye it might not be immediately evident that the platform structure was inappropriate for purpose. Nonetheless, her Honour noted that the injured subcontractor was entitled to proceed on the basis that the platform was appropriate given the assurances given to him by the company employee. The nature of the risk was not insignificant. Her Honour also had regard to the significant psychological, social and financial impacts on the injured subcontractor, further to the injuries sustained.

Her Honour observed that the defendant company not being well versed in commercial construction projects should have provided a signal to the defendant to ensure it was aware of the risks. Her Honour had specific regard to the observations of His Honour Judge Rafter SC in R v Brisbane Auto Recycling & Ors [2020] QDC 113 in relation to the significance of general deterrence. Her Honour observed that, both small and large companies are required to be aware of and comply with their work health and safety obligations. A significant penalty was necessary. Her Honour also had regard to the defendant’s plea of guilty, the maximum penalty for the offence, and the penalty imposed in other decisions of the Magistrates Court for category 2 offences in determining that a $60 000 fine was appropriate.

Her Honour declined to record a conviction having regard to the defendant’s otherwise favourable antecedents, having no prior convictions and a good standing in the community, and the steps that were taken post incident to address the contravention and reduce the risk of further incident.

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