Details of successful prosecution against E225383
The defendant company specialises in the construction of residential housing. It held duties under s.20 (2) of the Work Health and Safety Act 2011. It was the principal contractor for the construction of a two storey residence.
The project was in its early stages with the slab and exterior framing erected. On the second storey there was a void toward the front where stairs were to be installed. The void measured approximately 2.418 metres by 1.707, and was 3.129 metres above the concrete slab.
On 3 March 2016, a quantity of roof trusses were delivered to site. A crane operator and rigger were subcontracted to unload the timber from the delivery truck using a mobile crane. It was to be landed onto the second storey of the construction.
The experienced rigger was working at height accessing the trailer of the delivery truck hooking up the load and guiding its transfer. He moved onto the second storey of the partially constructed residence to assist with unloading and directing the crane operator. He walked backwards and fell into the opening. He landed on his head.
He sustained injuries which included skull fractures and associated traumatic brain injury, thoracic spinal fracture, maxillofacial injuries, right upper limb injuries and was hospitalised for over 5 weeks. He continues to have medical issues which have hampered his ability to re-enter the workforce.
There were no handrails surrounding or restricting access, no sheeting or protective covering and no warning tape alerting workers and others to the void. An experienced carpenter sub-contracted was designated as the site supervisor in the absence of the company representative. The afternoon prior to the incident a decision was made to remove edge protection around the void to assist with the delivery of the timber.
Neither the rigger nor the crane operator were inducted to site or advised of the hazard of the unprotected void. A walk through of the ground floor by the rigger and crane operator was undertaken prior to unloading. Documented safe work method statements identifying fall form height were in existence prior to the incident.
The defendant pleaded guilty in the Brisbane Magistrates Court to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet its work health and safety duties and was sentenced.
Acting Magistrate Kahlert fined the defendant $40,000 and ordered professional and court costs totaling $1096.15. She also made an order pursuant to s.239 that the defendant not offend against the Work Health and Safety Act 2011 for a period of 12 months, with a recognisance in the sum of $30,000 to be forfeited if convicted of an offence within this period. No conviction was recorded.
In reaching a decision, the Magistrate took into account the hazard had been identified and controls in place, by way of edge protection shortly prior to the incident. The defendant had delegated site responsibility to an experienced carpenter when the Director was not in attendance.
Acting Magistrate Karlert noted the incident has had ongoing consequences for the worker. She stated general deterrence was a significant factor in sentencing for an offence of this kind due to this obvious hazard on construction sites and the need for duty holders to be vigilant in implementing controls. In her Honour’s view based on comparatives provided she believed the sentencing range was a fine of between $65 000 - $80 000.
In deciding penalty, the court acknowledged the early plea of guilty, sincere remorse demonstrated by the defendant which included attempts at contacting the injured worker, part payment for accommodation for family while the worker was hospitalised and engagement of consultancy to audit and implement revised safety systems.
The Magistrate also took into account financial material including an affidavit and tax records which indicated the ongoing financial viability of the business would be disrupted with the imposition of a significant fine.
Based on the above factors the Magistrate considered a combination order of a fine and s 239 undertaking was the most appropriate sentencing option which provided some immediate general deterrence and something ‘hanging’ over the defendant for a period of time.
In light of comparatives and defendant’s previous unblemished history no conviction was recorded.
Considerations for prevention
(commentary under this heading is not part of the court's decision)
When working in the construction industry where there is exposure to risks from falls through voids while working at heights, duty holders should apply a risk management approach to ensure the selection of suitable control measures.
Risk management involves identifying the hazards, evaluating the consequences and likelihood of harm that may result from the hazard, deciding and implementing control measures to prevent or minimise the level of the risk from the hazard and monitoring the effectiveness of the control measures to ensure they remain working correctly.
When deciding and implementing control measures associated with the risk of serious injury, obligation holders should consider::
- Date of offence:
- Fractured skull and spine, broken wrist and collapsed lung
- Brisbane Magistrates Court
- Acting Magistrate Grace Kahlert
- s.32 of the duty under s.20(2) Work Health and Safety Act 2011
- Decision date:
- $40,000 fine plus a 12 month Court Ordered Undertaking per s.239 of the WHS Act 2011 with recognizance $30,000
- Maximum Penalty:
- Conviction recorded:
- CIS event number:
- Last updated
- 02 July 2018
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