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Managing risk

Fall through void sees builder convicted

When a painter was badly injured after falling through an opening, the builder and the painter’s manager disagreed about whether they’d been warned of the risk. Read how the court decided on the builder’s liability.

18 June 2024

A family-owned and operated building company contracted with the owners of a residential property in regional New South Wales to build an upper floor extension to their home. The job included the construction of a spiral metal staircase, wall framings, roof works, plaster lining works and painting.

The sole director of the building company was responsible for supervising, coordinating trades, financial matters, office duties and trade work on site, including health and safety. He subcontracted the painting work to a painting manager, who was assisted by two painters who were sole traders.

On 12 October 2021, helped by an employee, the builder created a stairway void almost two metres in diameter in a newly constructed rumpus room on the second floor of the house. To prevent people falling through the void and also conserve heat downstairs, they put a makeshift cover over the void with two structural plywood sheets that were not securely fixed or strong enough to hold someone’s weight.

Over the plywood, they’d placed a stepladder, two bricks, three pieces of timber and a black steel balustrade. No signage, barricades or temporary edge protection systems were put in place.

The builder told his employee to keep clear of the area for his safety, and warned the owners about the void. He didn’t expect anyone else to enter the upstairs area, but resolved to block off the opening before any other tradespersons came on to the site.

 

The fall

A week later, the painting manager and painters arrived at the site. Considering the narrow external scaffolding, the painting manager determined that the larger of the two painters would work inside, sanding and painting the windows, while the painting manager and the other painter would work on the windows from the scaffolding on the outside. They were not aware of the void on the second floor.

One of the painters made his way up to the second level via the existing external stairway. There was nothing physically preventing him from accessing the inside of the second floor. He stepped on one of the plywood sheets, It gave way under him and he fell through the void, about 2.7m to the ground floor below, severely injuring his spine and left leg.

The builder told SafeWork investigators he’d pointed out the void to the painting manager and instructed him that no one was to access the second level of the house until after he’d made the area safe the next day. However, the painting manager contradicted this, maintaining that he was not told about any void or instructed to keep out of the second level.

SafeWork NSW charged the builder with exposing the painter to a risk of death or serious injury. The case was heard in the District Court of NSW.

 

In court

His Honour Judge Andrew Scotting heard that before the incident, the builder had engaged a WHS consultant to help develop its WHS management system, including safe work method statements, inspection and induction checklists and other safety documents.

The SWMS acknowledged the risk of falling through a framed structure when working near a void. It prohibiting walking on top of the cover sheet and listed control measures including ‘floor sheeting, barricades, signage, no go zones, edge protection’. It also prescribed ‘scaffolding, edge protection [and] void covering’ that was secured and adequate for anticipated loads.

These control measures were not implemented or enforced at the site, and the painters had not signed induction forms.

The builder had relied on the painting manager to instruct the painters, as they had poor English language proficiency. He later acknowledged that he should have tried to communicate directly with the painters.

Following the incident and in response to a Prohibition Notice, the builder installed a secure, structural cover over the void, a secure timber handrail around it and a visual warning sign on one side of the void, as well as taking other significant steps to improve safety systems.

In sentencing, Judge Scotting said an aggravating factor was that the painter's injury and loss were substantial.

Mitigating factors were that the builder had no previous convictions and was a good corporate citizen with a reputation as a reliable and competent builder of small residential projects. He had good prospects of rehabilitation and had demonstrated remorse, enquiring after the welfare of the injured man. He cooperated with the investigation, accepted responsibility for the safety failures and pleaded guilty.

However, Judge Scotting noted that construction work poses multiple WHS risks. He was not satisfied that the builder was unlikely to reoffend, despite his ‘renewed perspective on matters of safety’ and determination to provide a safe working environment.

Recognising the builder’s limited capacity to pay a fine, the court imposed a penalty of $75,000 (that is, the appropriate fine of $100,000 reduced by 25% to reflect the guilty plea), plus costs.

 

What it means for employers

A WHS management system that looks adequate ‘on paper’ is not useful if risks and safety measures are not effectively communicated to workers.

 

Read the judgment

SafeWork NSW v Laggner Constructions Pty Ltd [2024] NSWDC 204 (3 June 2024)

 

Gaby Grammeno

Contributor

Gaby has extensive experience as a researcher, writer, editor and project manager on a wide variety of information products, including books, guides, reports and submissions.

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