Employer or contractor: Court determines liability in workplace accident

The District Court of New South Wales recently dealt with a case involving a worker who suffered serious injuries after being struck by a crane load at a construction site.

The case involved a dogman who failed to establish an exclusion zone while operating a crane, resulting in a worker being hit by the load. The incident left the worker with multiple fractures, a torn rotator cuff, and other injuries that significantly impacted his ability to work.

The court's decision reviewed the details of the incident, the systems of work in place, and the factors considered in determining the appropriate penalty.

The incident occurred at a construction site where a 5-storey residential development was being built. The employer, Aland B & W Pty Ltd, had engaged various contractors and sub-contractors to carry out the work.

Among them was Alpha Crane Management Pty Ltd, which provided cranage services, including a crane driver and a dogman.

On the day of the incident, the dogman, who was responsible for establishing and maintaining exclusion zones, failed to do so adequately. As a result, when the crane load was being moved, it struck a worker who was in the area, causing him serious injuries.

Systems of work and safety measures

The court determined that prior to the incident, exclusion zones were established and maintained by the dogman verbally instructing workers to keep clear.

However, on the day of the incident, no adequate exclusion zone was in place, and workers, including the injured worker, were working in the area where the exclusion zone should have been.

The sub-contractor agreement between Alpha Crane Management Pty Ltd and Aland B & W Pty Ltd required Alpha to ensure the establishment and maintenance of an exclusion zone.

However, the Safe Work Method Statement (SWMS) submitted by Alpha did not refer to the use of exclusion zones.

Consequences of the workplace accident

The worker sustained multiple segmental fractures to his right ribs, a torn rotator cuff that required surgical repair, a lower back injury, and an internal injury causing blood in his urine.

He was hospitalized for several days and continued to receive medical treatment long after the incident.

In determining the appropriate penalty for the dogman, the court considered various factors, including the objective seriousness of the offense, the need for deterrence, aggravating and mitigating factors, and the dogman's capacity to pay a fine.

The court emphasised the importance of deterrence in cases involving safety breaches, stating that "the penalty imposed in relation to this type of case must convey to workers the importance of complying with safety procedures and the potential consequences of not doing so. General deterrence is a significant factor when safety obligations are breached."

‘Good prospects of rehabilitation’

However, the court also took into account the dogman's lack of prior convictions, good character, unlikelihood of re-offending, and demonstrated remorse.

"The offender has demonstrated that he has taken this matter seriously and has adapted his behaviour at work. He has voluntarily undertaken further training. I am satisfied he has good prospects of rehabilitation," the court noted.

After considering all the factors, the court convicted the dogman and imposed a fine of $6,000, reduced from $8,000 due to his guilty plea. The court also ordered the dogman to pay the prosecutor's costs of $10,000.

The court's decision serves as a reminder of the importance of workplace safety and the consequences of failing to follow proper procedures. As the court stated, "The risk posed to bystanders through the operation of the crane was obvious and known to the offender as an experienced and licenced dogman."

Furthermore, the court emphasised the significance of establishing exclusion zones, noting that "the establishment of an exclusion zone was a relatively simple process to undertake and would have caused minimal inconvenience."

The case highlighted the critical role that proper safety measures play in preventing workplace accidents and the legal and financial consequences that can result from failing to adhere to these measures.