On 9 February, a company was sentenced in the Wynnum Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’). The defendant pleaded guilty to failing to comply with its primary health and safety duty, thereby exposing workers to the risk of death or serious injury.

The defendant was a construction company engaged to construct a two-storey residential care facility at an address in Cannon Hill. The defendant was the principal contractor for the project, which commenced in June 2020.

The defendant engaged a painting and plastering sub-contractor for the construction project that in-turn employed several workers to carry out painting work at the site. The defendant also engaged a scaffolding contractor to supply and install a perimeter scaffold around the structure, to protect against falls from height. The scaffolding was installed on 1 September 2020, and was dismantled and removed on 10 November 2020, following the completion of external cladding at the site.

On 10 November 2020 the defendant installed a temporary barricade across a doorway on the first storey of the worksite to exclude workers from an unguarded balcony. The barricade was approximately 1m high and made from cement sheeting with the words "No Entry" painted across it in red paint.

On 20 November 2020, the injured worker commenced work at about 6:30 am and was tasked, by the painting sub-contractor with painting the interior walls of the structure. While waiting for paint to dry, the injured worker accessed a balcony on the first storey of the building. A railing or balustrade was yet to be installed on the balcony and there was no edge protection scaffolding in place. The height from the edge of the balcony to the ground was approximately 3.4 metres.

Workers were able to access the balcony through an open doorway. At the time that the injured worker accessed the balcony, there was no barricade in place to prevent access, or signage to warn workers of the hazard posed.

Whilst on the rear balcony area, the worker lost his balance and fell from the unprotected edge of the balcony to the ground below.

Workers responded and located the injured worker on the ground beneath the balcony. Workers nearby rendered first-aid until QAS paramedics arrived and transported the worker to the Princess Alexandra Hospital where he was diagnosed with having a burst fracture of the T12 vertebrae of his thoracic spine. He underwent spinal surgery and was subsequently discharged from hospital on 26 November 2020.

In sentencing the defendant, Magistrate Sarra had regard to the maximum penalty for the offence and noted that general deterrence was an important sentencing consideration. His Honour remarked that any penalty imposed ought compel attention to occupational health and safety generally.

His Honour noted that there was a real risk that persons accessing the unguarded balcony would be at risk of fall and that the consequences if that occurred could easily have been fatal. His Honour took into account that the injured worker received serious injuries, but fortunately did not suffer permanent impairment.

In mitigation, Magistrate Sarra took into account the defendant’s timely plea of guilty as an indication of remorse and a willingness to facilitate the course of justice. His Honour had regard to the defendant’s lack of prior convictions and otherwise good character. His Honour also had regard to the considerable steps taken by the defendant to ensure compliance with safety obligations post-incident.

Having regard to all matters, as well as the comparable decisions referred to by the parties, Magistrate Sarra convicted and fined the defendant $75,000 and exercised his discretion not to record a conviction.

OWHSP contact: enquiries@owhsp.qld.gov.au

Court Report

General
Industry
Construction
Date of offence
Injury
Spinal Fracture
Court
Wynnum Magistrates Court
Magistrate or judge
Magistrate Sarra
Decision date
Company
Legislation
Plea
Guilty
Penalty
$75,000
Maximum fine available
$1,500,000
Professional and legal costs
$1,000
Court costs
$101.40
In default period
N/A
Time to pay
Referred to SPER
Conviction recorded
No