On 15 October 2021, a company that installed solar panels as part of its electrical business was sentenced in the Maroochydore Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its primary health and safety duty under section 19(1) of the Act.
On 14 August 2020, an apprentice electrician, who had been working for the defendant company for around three months, sustained a head injury after the unsecured ladder he was climbing to access the roof of a single storey residential house slipped out from beneath him, and he fell from a height of less than 2.4 metres to the driveway below. At the time, the worker was carrying a solar panel which weighed 18.5 kilograms. The worker has no recollection of the incident.
The investigation revealed that the defendant company had a generic SWMS for ‘Working at Heights’ which was used across various sites (and included a requirement to ‘tie-off’ ladders at the top before use), but which was not signed off by workers prior to the commencement of work. The injured worker said he had not seen the SWMS, which did not in any event address the specific hazard of workers climbing an unsecured ladder while carrying a solar panel or set out the method by which workers were to move solar panels up onto roofs.
As a result of his fall, the worker sustained a subarachnoid haemorrhage and was hospitalised for seven days. He ultimately made a full recovery and returned to work after many months. Post-incident, the defendant company purchased a mechanical panel lifter and made a number of changes to its work procedures, including drafting new SWMS for ‘Safe use of ladders’, ‘Solar installation’ and ‘Working on roofs and in ceiling spaces.’
The defendant company entered a plea of guilty in writing.
In sentencing, Magistrate Madsen took into account the defendant’s very early plea of guilty, cooperation with both the investigation and the administration of justice, lack of previous convictions, and that the company was a family business which employed 10 people.
However, all of that was to be balanced against an offence involving a maximum penalty of $1.5 million, and the range of consequences which could have resulted from the defendant’s conduct. His Honour considered it a fairly obvious failure. It was recognised that the obligations are onerous, but that they are important, as employees are entitled to go to work and not be injured.
His Honour accepted that steps had been taken post-incident to address the safety issues, including purchasing a motorised lift and the use of edge protection, and also acknowledged that the worker had now recovered, and that the defendant had supported him through his recovery.
His Honour took into account the circumstances of the incident, which resulted in a very serious injury, and the need for general deterrence in matters like this, as people need to be able to enjoy a workplace free of risk of injury or death. His Honour also emphasised denunciation and the need to protect workers and had regard to the potential consequences of the risk, which he considered potentially catastrophic, and the severity of the injury. His Honour also remarked that the probability of the risk was fairly obvious, particularly working with ladders and carrying objects of significant weight and awkward size, and that there were simple, reasonable and practical steps available to avoid the risk, which the defendant could not call inconvenient or burdensome. His Honour also noted that it was from good luck and not good management that the risk had not previously materialised.
His Honour considered the defendant’s capacity to pay a fine, having regard to the defendant’s reference to the tight profit margins it operated within. Notwithstanding this, His Honour noted that the defendant operated a well-established business which had capacity to employ 10 staff, and that the defendant would be able to make arrangements with SPER as to payment.
His Honour convicted and fined the defendant $55,000 and exercised his discretion to not record a conviction.
OWHSP contact: email@example.com
Sections 19(1) and 32 of the Work Health and Safety Act 2011