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By Gaby Grammeno Contributor
The worker injured in the accident was employed by a labour hire company that supplied workers to a Sydney suburban meat market. Both the shop and the labour hire business were operated by a partnership – a father and son team (the General Partner and the Limited Partner).
Another of the father’s sons was employed by the labour hire business and assigned work as a manager for the General Partner.
In May 2021, the labour hire worker was instructed to clean solar panels installed on the roof, but fell about eight metres through a frosted perspex skylight and landed on the concrete floor below.
His head and traumatic brain injuries kept him in intensive care for five months, and by the date of the court hearing nearly four years later, he is still in hospital because of the high levels of support he requires.
SafeWork NSW investigated the incident and charged both partners and also the labour hire company with Category 1 offences against the Work Health and Safety Act 2011.
A Category 1 offence involves the fault element of gross negligence and recklessness in exposing workers to a risk of death or serious injury. It carries a maximum fine of over $10 million for the business, or 10 years’ imprisonment for an individual, or both.
The son employed by the labour hire company was also charged with failing to comply with his WHS duty as a worker.
The three corporate defendants pleaded not guilty to the Category 1 offences, arguing that the prosecution could not establish the fault element of gross negligence or recklessness set out in s 31 of the Act.
The Limited Partner also maintained that the prosecution could not establish that it was operating a business or undertaking or that it was reasonably practicable for it to take any of the relevant risk control measures, because it did not engage workers for any purpose.
However, the General Partner and the Labour Hire Company conceded that they breached their WHS duties – it would have been reasonably practicable for the host employer to have provided permanent protective covers over the skylights and edge protection to the roof. Given that these risk control measures were not in place, they should have prohibited or prevented the men from working on the roof.
In the case of the labour hire company, SafeWork maintained it should have required the General Partner to take these preventive measures.
The partnership’s directors indicated they would plead guilty to the Category 2 offences – exposing the three workers cleaning the solar panels to a risk of death or serious injury – but without the elements of gross negligence and recklessness.
The son employed by the labour hire company pleaded not guilty to the charge that he’d failed in his WHS duty as a worker.
The case was heard in the District Court of New South Wales.
In court
Judge Andrew Scotting heard evidence that the manager assigned by the labour hire company told the supervisor to instruct the workers to clean the solar panels.
The supervisor took them to the roof and showed them how it was to be done, from between the rows, while keeping at least two metres away from the edge of the roof. He also told them not to go near the skylights.
No-one saw what exactly led to the man falling through the skylight.
SafeWork NSW put the case that the PCBUs’ conduct justified a finding of gross negligence given their failure to make use of the readily available guidance material such as the relevant code of practice, Managing the risk of falls at workplaces, and the workers’ inexperience in working at heights.
Judge Scotting was satisfied that the corporate defendants were aware of the risk that the workers might fall off the roof or through one of the skylights, and that the consequences of a such a fall would likely be very serious. He also said their risk assessment was ‘rudimentary’.
However, he was not satisfied beyond reasonable doubt that the prosecutor had established that any of the corporate defendants engaged in the conduct with gross negligence, or that they were reckless to the risk.
He said there was ‘a significant difference between a PCBU who takes no steps to mitigate a risk and a PCBU that takes inadequate steps to mitigate the risk’.
The instructions to clean the solar panels from between the rows, avoid the skylights and keep at least two metres from the edge had ‘a very substantial mitigatory effect on the risk of falling’, he said, but the PCBUs ought to have known that the supervisor's instructions were only administrative controls, and as such, ‘provided the lowest level of protection for the workers’ and ‘could be easily defeated’ if the workers slipped, tripped, or inadvertently or deliberately disobeyed the instructions.
‘The overwhelming cause of [the worker’s] exposure to the risk of death or serious injury as a result of falling through the skylight were the failures of the General Partner to provide and the Labour Hire Company to require permanent covers that would have prevented the possibility of a fall through one of the skylights. The provision of permanent covers would have eliminated the risk, irrespective of how [the worker] came into contact with the cover of the skylight.’
Other effective measures to prevent accidents would have included undertaking a risk assessment for the task, requiring compliance with a safe work method statement, installing pictorial warning signs and marking out a temporary exclusion zone around the skylights eg with tape and barricades.
Judge Scotting took the view that though the PCBUs’ conduct fell short of the standard required, it was not ‘substantially’ below the standard. They were negligent, but not ‘grossly’ negligent.
With regard to the question of recklessness, the Judge said the test for recklessness was ‘subjective’ and depended on the PCBUs’ knowledge of the risk. That is, whether they were conscious of the risk, foresaw the possibility of serious injury and acted intentionally or were willing to ‘run the risk’.
Judge Scotting found that from the evidence, he was unable to infer that the manager knew he was putting the workers at risk of death or serious injury.
He was not satisfied beyond reasonable doubt that through the manager, the corporate defendants had been grossly negligent or reckless, so the PCBUs were acquitted of the more serious Category 1 offences.
He was satisfied, however, that the Limited Partner was not liable because the business arrangement meant it could not allocate resources for safety or instruct workers.
The manager was acquitted of the charge because, in the circumstances where Judge Scotting could not make any reliable findings on the mechanics of the fall, he could not be satisfied beyond reasonable doubt that the manager’s breach of his WHS duty was a significant or substantial cause of the incident.
The General Partner and the Labour Hire Company will be sentenced for the Category 2 offences at a later date.
What it means for employers
If people are working at heights, available guidance material such as the relevant code of practice should always be followed to minimise the risk of a fall. A verbal warning alone is not enough.