The failure by a builder to take reasonably practicable steps to address an identified fall hazard meant that a construction site in Western Sydney was ‘an accident waiting to happen’, according to the NSW Industrial Court.
[Full text of this case: Inspector Spence v Aleksic Carpentry Pty Ltd & Anor [2012] NSWIRComm 45 (16 May 2012)]
In August 2009, a labourer for Aleksic Carpentry Pty Ltd sustained severe head injuries when he fell approximately four metres through an open, unsecured floor penetration at a worksite where the company had been contracted to supply and install timber framing for use in the construction of a number of town houses.
The labourer was not an employee of Aleksic Carpentry. He had been engaged by them to perform work at the site under a vocational rehabilitation program, which was under an arrangement between the company and the labourer’s workplace rehabilitation provider.
Aleksic Carpentry and its director, Milivoje Aleksic, were prosecuted by WorkCover for contravening s10(1) of the Occupational Health and Safety Act 2000. They pleaded guilty, admitting that as controllers of the work premises they failed, so far as is reasonably practicable, to ensure the premises were safe and without risks to health.
FAILURE TO ENSURE PENETRATION WAS SECURELY COVERED
During sentencing, President Roger Boland said that Mr Aleksic, the most senior person with authority on site at the time of the incident, had issued the work directive, which directly led to the labourer falling through a penetration that did not have a dedicated secure cover or edge protection such as a fence or barrier.
Namely, the labourer had been instructed by the director to assist two other workers with transferring a ‘heavy’ and ‘awkward’ fibro sheet, which had been covering the penetration, to a location elsewhere on the worksite.
President Boland said that Alkesic Carpentry had responsibility for taking immediate corrective action to eliminate and control hazardous work conditions at the site, but had failed to take reasonably practicable steps to address the forseeable and grave risk of falling through the unsecured penetration, such as ensuring it was securely covered.
SAFE WORK METHOD STATEMENT NOT FOLLOWED
Relevantly, his Honour noted that Mr Alkesic had identified the unsecured penetration in the period leading up to the incident, but that his solution to this issue — to cover the penetration with unsecured floor sheeting — was ‘completely inadequate’. He also noted that the injured labourer had little familiarity with construction sites, had not been wearing a helmet, gloves or proper boots, had not been supervised, and had not completed a site induction.
‘[The company] knew of the risk because the safe work method statement used by [it] identified “erect temporary handrail at edge of penetration” as a control measure to be implemented at the site,’ he said.
‘The [company] adopted no such measure. Further … other simple or readily available steps could have been put in place by the defendants to control and eliminate the risk. For example, not permitting the persons working at the site to work in close proximity to the open penetration; warning those persons about the penetration; conducting a risk assessment in relation to working near the penetration; implementing site inductions to inform persons of the presence of the penetration; or securing the penetration with a dedicated cover.’
‘WOEFULLY INADEQUATE’ APPROACH TO SAFETY
His Honour determined that the Alkesic Carpentry, through Mr Alkesic, paid ‘woefully inadequate’ attention to safety, which meant the site was an accident waiting to happen’.
In determining penalty, President Boland gave weight to the Mr Alkesic’s cooperation with the investigators, but was unable to conclude he had shown remorse — namely, he had blamed the labourer for creating the hazard, provided him with no material assistance, and did not pay him for the work he performed on the date of the incident. His Honour considered it appropriate to include a element for both general specific deterrence, and awarded the defendants a 17.5% discount for the utalitarian value of their guilty pleas.
The defendants were fined a combined total of $135,000.
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