Managing risk

$450K penalty after death of rigger

It is not enough to establish a policy setting out safe work procedures. An employer must do so much more. Read this case to understand why.

A company providing rigging services for construction projects has been convicted and fined after the death of a rigger who had held his high-risk work licence for only 11 weeks. Despite his inexperience and routine work procedures that were manifestly unsafe, the rigger had been left to work alone.

The rigger was employed by a company contracted to undertake the design, installation, commissioning, maintenance, and dismantling of a materials hoist used at the construction site for a 32-story residential apartment building with some commercial spaces (‘Building C’).

The materials hoist was a metal platform used to load and transport building materials from level to level at the site using a hand-held remote control. The hoist was mounted on a mast consisting of a steel lattice frame tied to the building with mast ties attached to the concrete slab on every second floor of the building. The sides of the hoist deck were contained by a 1.2m-high barrier.

Standard practice at the site was for workers driving the hoist up and down with the remote to lean over the barrier at the edge of the hoist to detect and troubleshoot any faults, like unusual noises.

The company’s policy was for riggers to work in pairs for safety reasons. In practice, however, the rigger was often left to work alone while the leading hand who was supposed to be supervising him completed other tasks.

While performing a ‘level jump’ up to level 31 of Building C, the inexperienced rigger must have been leaning over the side and was evidently trapped between the hoist's edge barrier and the level-31 mast tie. 

No one had witnessed the incident, but it was apparent that the man had been asphyxiated as his chest and neck were crushed. 

After an investigation by SafeWork NSW, the company was charged with breaching sections 19(1) and 32 of the NSW Work Health and Safety Act 2011 – failing to comply with the duty to manage health and safety risks and exposing an individual to a risk of death or serious injury or illness.

In court

The District Court of NSW heard evidence that leaning over the edge of the barrier involved a known risk of being struck by a mast tie.

Though the hoist manual acknowledged the risk, it did not instruct workers on how to avoid overhead mast ties or other structures. Nor did it prohibit them from leaning over the edge while the hoist was in motion. Despite verbal warnings, it was common for workers at the site to lean over the edge as a routine method of finding faults.

The judge found the incident reflected a serious failure in training, instruction, supervision, and the monitoring of work practices and compliance with established policies.

She said the need to satisfy community expectations that both large and small employers will comply with safety requirements means that employers must take the obligations imposed by the Act very seriously.

Given the fact that the business remains an ongoing concern, active in the industry, and employing numerous workers, she found there was a significant need for specific deterrence and that the penalty imposed must send a strong message to the relevant industry.

Though the company admitted it had contravened the Act, the judge was not persuaded it had actually accepted responsibility for its actions, as its affidavit appeared to be an attempt to blame the leading hand for the incident. The affidavit said that at no point before the incident had the company secretary received any information indicating that workers were not following the company’s safety systems and that he was ‘deeply disappointed’ the leading hand failed to follow the requirement for two workers to work together.

After taking into account the aggravating and mitigating factors, the judge imposed a fine of $450,000, after a reduction of 25% to reflect the early guilty plea.

The bottom line: It is not enough to establish a policy setting out safe work procedures. Management must ensure training, on-the-job instruction and supervision are sufficient to achieve compliance with safe practices.

Read the judgment: SafeWork NSW v Sky High Rigging Services Pty Ltd [2020] NSWDC 778 (18 December 2020)

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