On 28 August 2023, a worker was sentenced in the Brisbane Magistrates Court for failing to comply with his duty pursuant to section 28(b) of the Work Health and Safety Act 2011 to take reasonable care with his actions, breaching section 32 of the Act.

The defendant was a qualified roofer, and was engaged by a company to install gutters and downpipes to a building on a construction site. The defendant received an induction to the site by the Site Supervisor and was informed of the site rules, which included a prohibition on altering or interfering with any scaffolding without approval. The building the defendant was to complete work on had a two-level scaffolding platform erected around the perimeter, and the installation work the defendant was undertaking required his use of the platform.

On 30 September 2021, the defendant and his coworker altered the scaffolding platform in order to complete the installation work, without providing notice of that alteration or seeking approval as required. The defendant was not licensed to perform the scaffolding work. Planks and tie bars of the scaffolding were removed to create gaps for the downpipes to pass through, leaving. Additionally, as a result of the defendant’s alterations, the remaining planks could rotate outwards and dislodge. The alterations made the scaffolding platform hazardous, and created a risk that workers using the platform, or objects, could fall through the platform approximately five metres to the ground. Approximately seven workers, including the defendant and his coworker, used the altered scaffolding.

On 7 October 2021, a worker was sitting on the altered scaffolding to paint an external wall when the plank dislodged, causing him to fall approximately four metres through the gap in the platform onto a scissor lift. He sustained serious internal injuries, including five fractured ribs and internal bleeding, requiring hospitalisation and emergency treatment.

In sentencing, Her Honour Magistrate Merrin took into account the defendant’s plea of guilty as an indication of remorse and cooperation with the administration of justice. Her Honour noted that the defendant was twenty-four years old at the time of offending, and had no prior convictions. Her Honour had regard to an affidavit provided by the defendant, expressing his remorse for the offending and indicating a change in his work practices. He explained that he decided to alter the scaffolding because he believed the scaffolding was to come down shortly. While Her Honour accepted that the defendant was a hard worker and of good character, her Honour highlighted that the defendant’s actions were deliberate and that he had removed the scaffolding against site rules. Her Honour indicated that the defendant’s actions were not completely reckless, but that there was a level of recklessness involved in that he did not seek permission as instructed. It was stated that the defendant had an honest but misguided belief that he was permitted to do what he did.

Her Honour had regard to the Victim Impact Statement of the injured worker, particularly the effect on his physical and mental health and wellbeing, the burden on his family, the fact he was unable to engage in sport or return to work for a significant period.  Having had regard to the principles in section 9 of the Penalties and Sentences Act 1992, her Honour indicated that general deterrence was of most importance in this matter, and that public denunciation also applied. It was noted that the purpose of the Work Health and Safety Act 2011 is to ensure that workers going to work do so with the risks to their safety being eliminated or reduced.

The prosecution submitted a penalty range of $10,000 - $15,000, which Her Honour indicated was appropriate for the circumstances of the offending. However, in considering the defendant’s financial circumstances, her Honour stated a lesser fine was appropriate. Her Honour therefore imposed an $8,000 fine and exercised her discretion to not record a conviction.

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