In brief - Risk assessment could have averted a six metre fall, $300,000 penalty and conviction

On 22 February 2016, a painter, painting the exterior of a multistorey building under construction in Parramatta NSW, fell a distance of six metres from level 27 whilst undertaking painting work on the building exterior.

At the time, the painter was working from a work platform which was attached to a jumpform screen. The jumpform screen system provided edge protection for workers engaged in the construction of the building.

The painter fell through a gap between the edge of the building and the work platform (the void). The void measured 800 mm by 500 mm. The Australian Standard allows for a void of only 225 mm.

The principal contractor at the site had subcontracted the design, installation and operation of the jumpform screen system to Poletti Corporation Pty Ltd (Poletti).

SafeWork successfully alleged that Poletti failed to conduct a formal risk assessment to identify the void. This failure was one of a number of proven breaches of the duty to take reasonably practicable steps to ensure the health and safety of others. This was upheld on appeal to the NSW Court of Criminal Appeal.

The Facts

The sub-contract agreement required Poletti to prepare design drawings for the subcontracted works, certify that they were fit for the purpose for which they were intended to be used and required that Poletti acknowledge that it was to have "control over all aspects of the execution of the subcontractor works and safety issues at the site". Poletti agreed to provide the jumpform screen system and ensure that there would be no holes in the jumpform perimeter decking where a person could fall more than one floor.

On the day of the incident, the painter, who was employed by another subcontractor, stepped on a piece of plywood that had been placed over a void by the renderers, to catch any dropping render. The piece of plywood gave way under his weight and he fell six metres to the screen system below and suffered serious injuries.

As a matter of practice when the screen system was jumped, as in raised, all workers would evacuate from the screens, except those involved in the jumping process. When the jump was completed Poletti's representative would walk around and inspect the bottom level of the finishing screens to ensure there were no gaps. The representative did not walk around the upper levels of the jumpform screens which covered the four levels above. Poletti's representative would then inform the principal contractor that the jump was complete and that the finishing trades could resume work on the work platforms on the outside of the building.

Poletti was charged by SafeWork as a PCBU for failing to take reasonably practicable steps to ensure that persons, other than workers in its business, were not put at risk from the work carried out arising from the conduct of Poletti's business or undertaking.
The prosecution alleged that Poletti could have taken the reasonable steps of:

  1. conducting a risk assessment in relation to any risks associated with the existence of a void between the work platforms of the formwork screen and the outside structure of the building;

  2. ensure that all voids between the work platforms of the formwork screen and the outside structure of the building greater than 225 mm were fitted with a secure permanent structure and/or hinged flaps;

  3. ensure that all persons undertaking finishing trades were not permitted to access the work platform until the voids were made safe; and

  4. ensure that a static line was installed on the work platform to enable persons to use height safety personal protective equipment such as fall restraint or arrest equipment while accessing the work platform.

Poletti was found guilty before the District Court of NSW. In December 2019 Poletti was convicted and fined $300,000 and ordered to pay the costs of the prosecution. Poletti lodged an appeal to the NSW Court of Criminal Appeal where, on 25 September 2020, the court held, in dismissing the appeal, that the prosecutor had proved not only were the steps able to be taken by Poletti as alleged by the prosecutor, but that each step was reasonably practicable to control the risk as alleged in the summons.

The Court held that it was reasonably practicable for Poletti to undertake a risk assessment to minimise the risk posed by the void. The cost of the risk assessment was not grossly disproportionate to the risk.

Elimination or minimisation of risk

The Work Health and Safety Act of NSW, and similar Acts in other states and territories of Australia, requires a person conducting a business or undertaking (PCBU) to eliminate risk to health and safety, so far as reasonably practicable and if it is not reasonably practicable to eliminate the risk to health and safety, to minimise those risks so far as is reasonably practicable.

The District and NSW Court of Criminal Appeal held that the step of undertaking a risk assessment was a way to minimise the risk. The Courts also held that prevention of workers access to the work platform and elimination of the voids were steps which would have eliminated the risks to the workers. The above steps were reasonably practicable for Poletti to undertake.

Conclusion

The NSW Court of Criminal Appeal has identified that a reasonable step to take at any workplace is a risk assessment to assess the risks associated with the activity.

Any failure to undertake a risk assessment, could be used, in tragic circumstances, to commence an industrial manslaughter prosecution.

In June this year, the NSW Government linked the WHS Act to the offence of Manslaughter in the NSW Crimes Act. Within the WHS Act, it also created offences of Gross Negligence and of holding insurance for WHS fines. In Victoria, in July this year, the new offences of Industrial Manslaughter commenced. In Queensland, in 2017, the WHS Act of QLD was amended to insert Industrial Manslaughter offences. The Mining Safety Laws in Queensland were also amended earlier this year to include the same offences. In Western Australia, the new WHS Laws, which include Industrial Manslaughter offences, have been passed by both houses of parliament and are soon to be commenced.

It is recommended that your safety management system be reviewed to ensure a risk assessment is conducted upon your business or undertaking.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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