On 16 June 2023, a specialist lighting company and one of its directors were sentenced in the Brisbane Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’). The company pleaded guilty to failing to comply with its primary duty to ensure workers’ health and safety, thereby exposing them to the risk of death or serious injury. The director pleaded guilty to failing to exercise due diligence to ensure the company complied with its duty, thereby exposing workers to the risk of death or serious injury.
Water had been leaking through the skylights on the roof of the warehouse the company operates out of. The warehouse manager, a 50-year-old male who had been working for the company for over 15 years, had repaired a leak several months earlier, and identified the need for further repair. While being experienced at working at height given the nature of the company’s business (in providing lighting for concerts, stadium sports and live entertainment), he was not experienced or qualified in roofing work. The director approved the purchase of the required materials, and further plans were made for the same worker to repair the roof.
As the work was ‘high risk construction work’, a specific Safe Work Method Statement (“SWMS”) was required, which the company failed to prepare. It did have in place a Safety Management Plan, but it was not followed; no risk assessment was performed, no measures were put in place to eliminate or mitigate the risk of fall, and the worker was not given any instructions as to how to perform the roofing work. Instead, the worker informed his supervisor and the director that no controls could be implemented, which they relied upon. The failures by the company and the director exposed workers to the risk of serious injury or death from falling from, or through, the roof.
On 2 August 2021, the worker and his two sons (aged 19 and 21), who both also worked for the company, and likewise had no skills in roofing or construction work, began the roof repair task. The director was present at the warehouse. During the work, the worker fell through the roof, landing onto heavy duty boxes, then falling onto the concrete below (7.2 metres in total). He suffered serious and extensive injuries, including a fractured skull, fractured eye socket, fractured wrist, fractures to multiple ribs, multiple fractures to his pelvis, a tear in his lung, lacerations and bruises to the right side of his body, and blood clots. He was hospitalised for eight days initially, and then returned to hospital a month later having suffered a pulmonary embolism. He continues to suffer significant pain today, together with associated psychological impacts, and is unable to work.
Following the incident, the defendant quickly engaged an external company to complete the roof repair work, at a cost of just over $2,000.00.
In sentencing, Magistrate Merrin took into account the defendant’s early plea of guilty, lack of prior convictions and demonstration of deep remorse. However, Magistrate Merrin recognised as significant that the worker was performing a task outside of the core business of the company (and was not a roofer); but that the company was well versed in working at height, and therefore was aware of the need for conducting risk assessments and drafting a SWMS. Her Honour noted that while the worker was an experienced employee and had spoken to the director and others about his ability to undertake the work, it did not shift the onus, and that was acknowledged by the plea of guilty, but that the need for a SWMS (and associated controls) ought to have been obvious.
Her Honour remarked that the point of the legislation is to require employers to maintain their focus on safety, and that the risk of falling and suffering a very serious injury or death from such a significant height is almost inevitable. Her Honour found that the gravamen of the offending was the complete failure to assess the risk and implement a SWMS, and that of significance was that the very serious injury was foreseeable and avoidable. Her Honour remarked that the director either completely ignored, nor turned his mind to the fact that there ought to have been proper measures put in place, and that it was a real lapse in judgment (or complete ignorance) to permit the worker to undertake the work.
Her Honour noted that there were a number of relevant sentencing considerations, of which general deterrence was the most relevant, but also to be considered with the other sentencing principles and with the purposes of the Act. Her Honour found that the injuries caused were also of significance, and took account of the victim impact statement.
Her Honour found that the potential consequences were significant, the probability of the risk was high given the worker was not a roofer and had no roofing qualifications, and the risk could easily have been avoided or minimised by using a harness or paying another company $2000.00 to undertake the work (as the post-incident conduct demonstrated). In all of the circumstances, including the significant factors in mitigation, and considering there was no restriction on the defendant’s ability to pay a fine, the company was convicted and fined $65,000, and the director was convicted and fined $10,000. No convictions were recorded.
OWHSP contact: email@example.com
Sections 19(1) and 32 of the Work Health and Safety Act 2011
Sections 27 and 32 of the Work Health and Safety Act 2011