Details of successful prosecution against E157429
The defendant company operated a construction business. While contracted to construct a two storey building, two workers fell approximately 2.7 metres from a trestle and plank temporary scaffolding platform onto a concrete floor. One worker sustained traumatic and permanent brain injuries and the other sustained neck, elbow and lower back injuries.
The two workers were performing concrete core filling in to a dincel block wall. The trestle and plank temporary scaffolding they were working from was one plank wide. There was no edge protection in place to prevent a fall while performing the task. The temporary scaffolding was inadequate for the task being performed. There was no risk assessment conducted prior to the work nor any specific work method statement to ensure adequate and appropriate scaffolding was in place.
The defendant pleaded guilty in the Southport Magistrates Court on 2 May 2014 to breaching s.32 of the Act, having failed to meet its work health and safety duties. The sentence was resumed on 26 August 2014.
Magistrate John Costanzo fined the defendant $60 000 and ordered costs totaling $1080.70. He also made an s.239 order, that the defendant company not offend against the Act for a period of two years, with a recognisance in the sum of $60 000 to be forfeited if it is convicted of such an offence within this period. A conviction was recorded.
In reaching a decision the magistrate acknowledged the defendant failed to have proper scaffolding in place for the work, that all the director of the company had done was have a discussion with his supervisor (one of the injured people) and did nothing further to ensure the work was undertaken safely.
He also stated that the scaffolding was inadequate and noted that two workers had been injured, one significantly and permanently. He acknowledged the company was a small business operation, however that it could not avoid its responsibilities on that basis. He also noted the profit and loss statement that had been tendered to the court showing that the company had ‘no business on the horizon’.
In deciding penalty, Magistrate Costanzo took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered a timely plea of guilty. Magistrate Costanzo stated he was not satisfied the director of the company had shown contrition. He acknowledged and took into account the matters under s.9 and s.48 of the Penalties and Sentences Act and stated that as the objective gravity of the offence was serious, there was a need for an element of deterrence in the penalty imposed.
Considerations for prevention
(Commentary under this heading is not part of the Court's decision)
When deciding on and implementing appropriate control measures associated with the use of trestle and plank temporary scaffolding platforms, obligation holders should ensure:
- a risk assessment is completed for high risk construction work (where a person could fall two metres or more), stating controls to prevent a fall from one level to another. Controls should be evaluated to ensure the correct supply of equipment to prevent a fall
- equipment is erected by a suitably trained person (or licensed person if more than four metres from the working platform) to comply with the manufacturer’s specification and the Scaffolding Work Code of Practice 2009
- the scaffold working platform is a minimum of 450 mm in width or greater if materials are to be stored on the platform
- the gap between the platform and the structure is not greater than 225 mm
- safe access to the working platform is provided and the span of the frames and the planks don’t exceed the manufacturer’s specifications.
- Date of offence:
- Traumatic permanent brain injury – approximately 70 per cent affected
- Southport Magistrates Court
- Mr John Constanzo
- s. 32 and the duty under s.19 Work Health and Safety Act 2011
- Decision date:
- $60 000 and a 2 year court ordered undertaking per s.239 with a recognisance in the amount of $60 000
- Maximum Penalty:
- $1 500 000
- Conviction recorded:
- CIS event number:
- Last updated
- 02 July 2018
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