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District Court 13 October 2014

WorkCover Authority of NSW v Merhis Construction Pty Ltd

[2014] NSWDC 373

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY REMORSE OTHER WORKER FELL FROM AN A FRAME LADDER

Citation: WorkCover Authority of NSW v Merhis Construction Pty Ltd [2014] NSWDC 373
Court: District Court of New South Wales
Date: 13 October 2014
Judge(s): Curtis J

Background

The defendant, a large head contractor, was engaged on a construction project at Sutherland when a subcontractor's worker fell from an A-frame ladder while installing plumbing. The worker fell only one to one and a half metres, but landed on a scaffolding pallet stillage, where a steel upright approximately 70 centimetres high impaled him in the armpit area.

WorkCover Authority of NSW prosecuted the head contractor for breaching section 8(2) of the Occupational Health and Safety Act 2000, which requires employers to ensure that persons not in their employ are not exposed to risks to their health and safety. The defendant pleaded guilty.

The defendant had taken a range of proactive steps on the site, including engaging an experienced OHS consultant, employing two full-time OHS coordinators, commissioning a Corporate Safety Management Plan, and requiring subcontractors to submit Safe Working Documentation. Despite these measures, identifiable gaps in the safe work arrangements remained.

  • Whether the defendant, as head contractor, breached its duty under section 8(2) of the Occupational Health and Safety Act 2000 by exposing a subcontractor's worker to risk of death or serious injury.
  • What weight should be given to the defendant's existing safety systems and the nature of its failure (inadvertence versus indifference) when assessing the gravity of the offence.
  • What penalty was appropriate, having regard to the seriousness of the offence, the defendant's record, its expressions of remorse, and its early guilty plea.

Decision

Curtis J found that the defendant's failures were multiple. It had not banned A-frame ladders on site or required platform ladders as the safer alternative. It had also failed to ensure that the subcontractor's Safe Work Method Statement specifically addressed the risks associated with the relevant plumbing work. The Safe Work Method Statement in place addressed ladder use only in general terms, requiring little more than spreading the legs and not climbing above the third rung.

His Honour noted that the regulatory framework then in force, under Division 6 of the Occupational Health and Safety Regulation 2001, addressed falls from heights above two metres. Since the worker was not at risk of falling from more than two metres, the regulations would not have drawn the attention of those preparing safe work documents to any prohibition on A-frame ladders. A WorkCover safety alert from May 2010 had addressed ladder use more directly, but there was no evidence it ever reached either the defendant or the subcontractor.

Curtis J characterised the failure relating to A-frame ladder selection as one of inadvertence rather than a want of care. However, his Honour considered the more serious omission to be the failure to maintain good housekeeping on the site, specifically the failure to ensure that a steel upright was not left in a position where a worker falling from a ladder could be impaled on it. That risk was visible and should have been identified by supervisors on the ground.

Taking into account the defendant's otherwise commendable record, its active approach to safety, its post-incident remediation steps (including purchasing A-frame ladders for subcontractors), its genuine remorse, and its early guilty plea, Curtis J assessed a base penalty of $100,000 and applied a 25 percent discount, resulting in a fine of $75,000.

Orders Made

  • The defendant was convicted and fined $75,000.
  • One half of the fine (a moiety) was ordered to be paid to WorkCover Authority of NSW.
  • The defendant was ordered to pay WorkCover's costs, as agreed or assessed.

Key Takeaways

  • A head contractor's duty under section 8(2) of the Occupational Health and Safety Act 2000 extends to protecting subcontractors' workers, and that duty can be breached even where the contractor has invested substantially in safety systems and personnel.
  • The District Court distinguished between inadvertent failures (not banning A-frame ladders where the regulation did not expressly require it) and more culpable failures (permitting an obvious physical hazard to remain adjacent to a work area), treating the latter as the more serious aspect of the offending.
  • Where a defendant's departure from reasonable standards is limited, the court may assess the gravity of the offence as moderate rather than high, even where serious injury resulted.
  • Genuine remorse, an early guilty plea, absence of prior convictions, and post-incident corrective action collectively supported a 25 percent reduction from the base penalty and influenced the overall assessment of culpability.
  • The existence of a Safe Work Method Statement does not, of itself, discharge a head contractor's obligations if that statement fails to specifically address the risks associated with the particular work being performed.

Legislation and Cases Referenced

Legislation:
- Occupational Health and Safety Act 2000 (NSW), section 8(2)
- Occupational Health and Safety Regulation 2001 (NSW), Division 6

Cases:
No cases were cited in the judgment.