Failure to supervise: Employer's ignorance of risks leads to worker's fatal fall

The New South Wales' District Court recently dealt with a case involving a licensed builder operating as a sole trader who was found guilty of violating the Work Health and Safety Act 2011.

The case centred around a tragic workplace incident that resulted in the death of a worker due to inadequate safety measures and supervision during scaffolding work.

In this case, the worker's representatives argued that the employer had failed to meet their obligations under workplace safety laws. They pointed to several key issues, including the use of unlicensed workers for high-risk scaffolding tasks, inadequate supervision, and a lack of proper safety systems.

The prosecution also highlighted the employer's alleged knowledge of the risks involved and questioned why appropriate steps weren't taken to mitigate these dangers.

Worker’s tragic fall

The case revolved around a scaffolding incident at a residential property in Point Piper, Sydney. The licensed builder, operating as a sole trader under the business name ReidStitt Constructions, had been engaged in renovation works at the property since 2015. In 2018, the property was purchased by a new owner who contracted the builder to continue the renovation works.

The specific task that led to the incident involved extending a flue to address noise complaints from a neighbour. On 9 September 2019, workers engaged by the builder erected a mobile scaffold tower next to a wall on the western side of the house. The scaffold stood 8.65m high, with two work platforms positioned more than 4m above the ground.

On 11 September 2019, during the dismantling of the scaffold, a worker attempted to pass a work platform weighing about 25 kilograms to another worker standing on a 2.7m high wall.

When the second worker said he was off-balance, the first worker tried to hold the weight of the platform and leaned on a horizontal brace of the scaffold. The brace gave way, and the worker fell approximately 5.75 metres to the ground of the neighbouring property. Tragically, the worker suffered serious head injuries and died a few days later.

Employer’s failures and responsibilities

The court identified several failures on the part of the employer that contributed to the incident:

1. Failure to engage a person with a High Risk Work Licence for basic scaffolding work
2. Directing unlicensed workers to carry out scaffolding work beyond the 4-metre height limit
3. Lack of a proper system of work for scaffolding, including inadequate instructions and training
4. Insufficient supervision of workers during the scaffolding work

The judge emphasised the seriousness of these failures, stating:

"[The employer] knew that there was a risk of a fall from height from the scaffold and that if it was to be erected to a height where there was a risk of a person or object falling more than 4m that it needed to be erected by a licensed scaffolder, as a primary means of alleviating the known risk."

The court also noted that the employer had hired a 5m single-width mobile scaffold package from a hire company. When erected as designed, this scaffold could be constructed to a height of 6m plus the height of the castors.

However, to comply with Work Health and Safety Regulations, the highest work platform could only be installed to a height where there was a risk of a person or object falling no more than 4m when erected by persons without a High Risk Work Licence.

Workplace changes after the accident

Following the incident, the employer implemented several changes to improve safety practices:

1. Ceasing the use of single bay mobile scaffolding for heights under 4 metres
2. Engaging licensed scaffolders for all scaffolding work over 4 metres
3. Reinforcing the importance of Safe Work Method Statements (SWMS) for high-risk work
4. Conducting daily toolbox talks to discuss safety issues

The employer expressed remorse for the incident, acknowledging the profound impact it had on him personally and professionally. The court noted:

"[The employer] expressed remorse and regret in his affidavit that he failed to ensure [the worker's] safety, that he passed away and that his daughters will grow up without their father."

The employer also sought psychological treatment to address post-traumatic stress symptoms associated with the worker's death and maintained contact with the deceased worker's family, even serving as a pallbearer at the funeral.

Court’s sentencing considerations and outcome

In determining the appropriate sentence, the court considered various factors, including:

1. The objective seriousness of the offence
2. The need for general and specific deterrence
3. Aggravating factors, such as the substantial harm caused
4. Mitigating factors, including the offender's lack of prior convictions and good character

The judge emphasised the importance of deterrence in such cases:

"[Employers] must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements."

The court also took into account the employer's financial situation, noting that the business had suffered losses due to COVID-19 lockdowns and a separate civil proceeding. However, the judge stated:

"A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence."

Ultimately, the court imposed a fine of $100,000 on the offender. In explaining the sentence, the judge stated:

"The penalty imposed in relation to the offences must provide for general deterrence. [...] General deterrence is a significant factor when safety obligations are breached."

This case reminds employers of the critical importance of workplace safety, particularly in high-risk industries like construction.