By Gaby Grammeno Contributor

The incidents took place on a Wollongong building site. The builder and principal contractor was a small construction company engaged to carry out construction work on a multistorey building. A subcontractor was engaged to undertake scaffolding work. 

The builder had control of a tower crane at the site, and a qualified crane operator was employed and trained in the company’s Crane Operations Safe Work Method Statement (SWMS).

Despite his training, however, the tower crane driver left the crane and its remote control unattended while he went to the toilet. The crane slewed around and the hook block, lifting chain and hoist rope hit the side of the building on levels 16, 17 and 18, causing damage. 

Later the same day, when two skip bins were being lifted from the ground to level 8, the crane hoist rope failed and the skip bins and crane hook block fell five storeys, landing on level 2. After an uncontrolled event such as the earlier incident, the machinery was supposed to have been inspected by a competent person before being used again, but this hadn’t been done.

Then the following morning a third breach of the company’s own rules occurred – while retrieving the hook from the skip bins that had fallen, the tower crane driver stood on the unprotected edge of the balcony without making use of any fall protection devices or fall arrest equipment. This was contrary to the company’s policy and procedure in relation to unprotected edges, which prohibited workers from going near the edge without fall protection.

Two anonymous notifications regarding the second incident and safety concerns at the site prompted a call from a SafeWork NSW manager and a visit from an inspector the following day, and the issue of various notices regarding the incidents.

Though no-one was injured, each of the incidents had the potential to result in death or serious injury to people on the site, so they were serious breaches of the employer’s duty to provide and maintain a safe workplace and safe systems of work.

All three incidents exposed anyone in the vicinity to a risk of serious harm, but the employer didn’t comply with notification requirements – he failed to report each incident to the regulator, and there was no system to ensure the site of the incident remained undisturbed until an inspector arrived.

SafeWork NSW charged the employer with eight contraventions of the Work Health and Safety Act 2011, two of which were later dropped, and the case was heard in the District Court of New South Wales.

 

In court

The evidence revealed that in each instance, the company’s own policies and procedures had not been followed.

When the crane driver left the crane and its remote control unattended without isolating it to prevent slew while he was absent, he’d failed to comply with the company’s SWMS.

Though the builder had a procedure for reporting notifiable incidents to SafeWork NSW, it was not followed after the first or second incident.

Judge Wendy Strathdee accepted that the builder understood the risks of working at heights and using cranes and had systems in place, but had failed to ensure that its systems were followed and enforced.

In considering the objective seriousness of the offence and the aggravating and mitigating factors, Judge Strathdee noted that the culpability of the business needs to be assessed on the basis of the potential risk, rather than actual damage or injury caused by the breach. 

The risks were present over a two-day period, and practicable measures had been available to eliminate or minimise the risk. The offence was serious. The incidents were clearly dangerous, as defined in WHS legislation, so the regulator should have been notified immediately.

By way of mitigating factors, the builder was unlikely to reoffend, had undertaken significant changes and was ‘more focused than before’ on health and safety.

Moreover, the employer currently had no employees and did not intend to continue in the business. He had co-operated with SafeWork NSW during its investigations, had shown remorse and accepted responsibility for the offence. The business had also entered an early guilty plea. 

Considering the requirement for general deterrence, the builder was convicted of contravening WHS laws by exposing people to a risk of death or serious injury, and failing to report dangerous incidents to the regulator. In view of his early guilty plea, the appropriate fine was discounted by 25 percent.

The court imposed a fine of $60,000 for each of the three occasions on which people had been exposed to a risk of death or serious injury, and $15,000 for failing to notify the regulator each time – a total of $225,000, plus the prosecutor’s costs.

 

What it means for employers

It’s not enough to have proper WHS documentation and provide training – safe systems of work have to be the daily reality of how things are done on site, and supervision has to be adequate to monitor and enforce compliance with safe working practices. 

 

Read the decision

SafeWork NSW v Modco Homes Pty Ltd [2024] NSWDC 565