By
Gaby Grammeno
Contributor
The fall
A residential development in a south Sydney suburb involved the excavation of a deep pit in preparation for the construction of two new buildings. After a contractor installed temporary fencing around the pit, the principal contractor identified the fencing as inadequate and had it strengthened on the northern side, but not on the southern side.
The principal contractor engaged another contractor and its workers to undertake concrete cutting. The workers completed and signed a site-specific induction booklet and a questionnaire confirming they’d discussed safety rules and been taken through the relevant Safe Work Method Statement (SWMS) for the work to be performed.
The induction booklet included the instruction that they must observe and comply with all warning signs and instructions. There was a safety sign at chest height at the southern end of the fence reading ‘DANGER – NO ENTRY AUTHORISED PERSONNEL ONLY’.
Nevertheless, some workers were permitted to enter the area inside the fencing, and when one of the contractor’s workers went back to a work van to get additional tools and an electrical lead, he returned by crossing the southern edge of the excavation to access a power box on that side.
The principal contractor saw where he was and called to him that he shouldn’t be there, and that there was a power box at the basement level.
The worker could not hear him properly, so he walked to the fence, placed his hands on the temporary edge protection and leant onto the fence to hear what was said and see what was being indicated.
The fencing gave way and he fell into the excavation, landing on an area of moulded dirt and fracturing his pelvis in several places, as well as his ankle.
Following the incident, SafeWork NSW issued three prohibition notices and six improvement notices and charged the principal contractor with breaching its duty under the Work Health and Safety Act 2011 by exposing the worker to a risk of death or serious injury.
In court
The District Court of New South Wales heard evidence that the fencing was not properly secured in all areas. Though the base was secure, the tops of the panels were not all held together by metal clips. There was a gap big enough for a person to walk through between this fencing and the boundary fence on the southern side of the excavation.
Despite this, an earlier site inspection had approved the fencing as adequate without checking whether it was robust enough to keep workers out of the area or withstand the force of someone leaning or falling against it.
Temporary edge protection consisting of mesh wire panels joined with star pickets and secured with cable ties at the top and bottom of each picket was installed along the side of the excavation where the worker fell.
The induction booklet signed by the workers made no mention of exclusion zones, and the SWMS relating to ‘general site activities’ did not address exclusion zones or the risk of falls into the pit. Nor did it specify the type of fencing to be installed around the danger area.
The principal contractor said the workers had been told not to access certain parts of the site without express authorisation, but the workers disputed this.
Judge David Russell found that the principal contractor had foreseen the risk but had not taken simple and effective measures to fix the fence. Nor had it provided adequate training, instruction and supervision to ensure workers were aware of, and did not enter, the exclusion zones and/or unauthorised access areas on the site.
He noted that falls from a height in the construction industry are ‘depressingly common’, and there was a significant likelihood of a fall because verbal instruction, even if given, did not physically prevent access to the incident site.
The potential consequences of a fall were death or serious injury, and there was ample guidance material available on the risk and measures to eliminate or minimise it.
After the incident, the principal contractor:
- upgraded the fencing and barricading
- secured the front of the excavation area and installed water-filled barriers
- updated the applicable SWMS in relation to the training in working near edges, signage, and restricting access to high-risk areas
- engaged an external consultant to work on documentation, training, and inspections and additional personnel to assist with safety management and contractor management
- held a toolbox talk advising personnel not to access any closed areas on site and that any contractor or worker who accessed such areas would be fined.
In sentencing, Judge Russell said the principal contractor’s culpability was in the lower half of the mid range, but the penalty imposed must provide for general deterrence, as employers must take their obligations under the WHS Act very seriously, and the community is entitled to expect that both small and large employers will comply with safety requirements’.
An aggravating factor was that the injury and harm to the worker was substantial. The Victim Impact Statement described the incident as ‘crippling’, saying it had violently ripped away his ability ‘to fulfil the basic requirements as a man, partner and a father’. He said he’d ‘developed a serious psychiatric condition which necessitated hospital treatment’, ‘spent days sobbing’, and vented his frustration and hurt onto his partner and children, which ‘drove a painful wedge’ between them.
Mitigating factors were that the principal contractor was otherwise of good character, was unlikely to re-offend, had good prospects of rehabilitation and had shown remorse and acknowledged responsibility for the consequences of its failures. It had also entered an early guilty plea, which earned it a 25% discount on the fine.
The court convicted the principal contractor and imposed a fine of $180,000 plus the prosecutor’s costs.
What it means for employers
Where a serious risk can be foreseen, employers must take reasonably practicable steps to eliminate or minimise the risk.
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