Citation: SafeWork NSW v Freyssinet Australia Pty Ltd [2017] NSWDC 290
Court: District Court of New South Wales
Date: 27 October 2017
Judge: Kearns DCJ
Background
The defendant, Freyssinet Australia Pty Ltd, was a subcontractor engaged in post-tensioning work on a large high-rise residential construction site in Mascot, NSW. The head contractor, Karimbla Construction Services (NSW) Pty Ltd (commonly known as Meriton), directed all workers on site to use a particular internal stairway to access the basement, where lockers, a lunchroom, toilets, and offices were located.
On 10 February 2015, a worker employed by Freyssinet, Mr Oketi Felemi, was descending that stairway with colleagues at the end of his shift. He lost his footing near the bottom of the first flight of steps, fell more than three metres from an open-sided landing, and landed on his head. He suffered serious brain and other injuries.
SafeWork NSW charged Freyssinet with a Category 2 offence under section 32 of the Work Health and Safety Act 2011 (the Act), alleging that Freyssinet had failed to comply with its health and safety duty under section 19, and that the failure exposed Mr Felemi to a risk of death or serious injury. Freyssinet pleaded not guilty.
Legal Issues
- Whether Freyssinet, as a subcontractor rather than the head contractor, owed a relevant health and safety duty under section 19 of the Act in respect of the stairway
- Whether a risk of workers falling through the unprotected gap between the edge of the stairway landing and the timber handrail actually existed and was foreseeable
- Whether adequate edge protection was in place at the open side of the first landing
- What measures were reasonably practicable for Freyssinet to have taken to eliminate or minimise that risk
- Whether Freyssinet's failure to take those measures constituted a breach of its duty under the Act
Decision
The court found that Freyssinet was a person conducting a business or undertaking within the meaning of section 19, and that Mr Felemi was a worker engaged by Freyssinet for the purposes of that provision. Even though Freyssinet was a subcontractor rather than the head contractor, the statutory duty extended to ensuring the health and safety of its own workers, including in shared areas of the site. The fact that another party also had responsibilities in relation to the stairway did not displace Freyssinet's own duty.
The court was satisfied beyond reasonable doubt that a real risk existed of a worker falling from the open side of the first landing. The single horizontal timber handrail in place at the relevant time left a significant unprotected gap through which a worker could fall, whether by going under the rail after losing their footing or otherwise. The court found that this risk was foreseeable and that Freyssinet, having used the stairway as the required access for its workers, knew or ought reasonably to have known of the hazard.
The court was satisfied that there were reasonably practicable measures available to Freyssinet to address the risk. These included providing additional edge protection on the open side of the landing, raising the issue with the head contractor or other relevant parties, or taking steps to ensure the stairway was made safe before its workers used it. The cost and difficulty of such measures were not disproportionate to the risk, particularly given the severity of injury that could result from a fall of more than three metres onto a lower landing.
On the basis of these findings, the court found Freyssinet guilty of the charged offence. The stairway was the only permitted access to the basement for all workers on site, the gap in the edge protection was evident, and Freyssinet had both the knowledge and the capacity to take action.
Orders Made
No orders were made in this decision.
Key Takeaways
- A subcontractor's health and safety duty under section 19 of the Work Health and Safety Act 2011 is not displaced merely because the head contractor also has responsibilities over a shared access area: Freyssinet's position as a subcontractor did not limit its obligation to ensure the safety of its own workers using that stairway.
- Where workers are directed to use a particular access route, and the employer knows or ought to know of a foreseeable fall hazard on that route, the risk is not avoided simply because another party erected or controlled the infrastructure.
- Under section 18 of the Act, the "reasonably practicable" assessment requires weighing the likelihood and severity of harm against the availability, suitability, and cost of preventive measures. The District Court found that modest protective measures were available and proportionate to the serious risk of death or injury from a three-metre fall.
- The question of whether the injured worker cleared the handrail by going over or under it did not determine liability. The court held that the relevant question was whether an unprotected gap existed through which a fall could occur, not the precise mechanics of the incident.
- Applying the High Court's approach in Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, the court focused on the specific duty and the available practicable measures, rather than engaging in abstract analysis of the defendant's overall operations.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 18, 19, 32
Cases:
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92