On 5 February 2021, a flooring system company and its director pleaded guilty and were sentenced in the Brisbane Magistrates Court for contraventions of section 32 of the Work Health and Safety Act 2011 (‘Act’). The defendant company failed to comply with its duty under section 19(2) of the Act, and the defendant director failed to exercise due diligence to ensure the company complied with its duty. Magistrate Suzette Coates imposed a fine of $35,000 on the company. In relation to the director, her Honour imposed a 12-month court ordered undertaking pursuant to section 239 of the Act, with a recognisance of $5,000.
The defendant company was engaged to undertake tiling and associated works as part of an upgrade to a tenanted multi-level commercial building in Upper Mount Gravatt (‘the workplace’). In preparation for tiling in the foyer area, workers of the defendant company, including its sole director, applied a floor levelling compound to the entire foyer floor beginning in the evening of 24 July 2018 through to approximately 2:30am of 25 July 2018. The compound required time to dry.
Before leaving the site, the workers placed boards and mats on top of the newly finished floor surface, creating a path along the wall from the emergency exit doorway to the centre lift in the foyer. The workers did not place matting on the new flooring near lift three which was immediately across from and closest to the emergency exit, although they placed bollards and traffic cones in other areas. Lift three was disabled at the ground floor, but its light was on and doors open. Later that morning, several members of the public crossed the newly finished foyer floor in front of lift three. Two people slipped on the floor and fell, with one sustaining a fractured left patella that required surgical intervention.
The defendant company had prepared a safe work method statement (‘SWMS’) for the project which identified the potential for slip hazards in the work area and the need to implement safety controls at the end of the work day to alert unfamiliar persons to those hazards. The SWMS also contemplated the need to inform the principal contractor’s Site Manager of remaining hazards in the work area that needed further attention. The defendant company failed to follow its own SWMS and did not implement an exclusion zone or any adequate delineated pathway, including signage, so that people could safely traverse the foyer. The defendant director failed to ensure the company had available for use and used appropriate resources such as floor coverings, safety bollards and signage and failed to implement processes for complying with its duty, such as complying with its SWMS.
In sentencing the defendant company, Magistrate Coates noted that this was not a case where the defendant did nothing, with the workers making some arrangements to provide for entry to the building by other tenants in the early hours. Her Honour accepted that the defendant did its best, albeit incompetently, to alleviate the risk, but was not successful and injury was sustained as a result. Her Honour acknowledged that the workers employed by the company attempted to mitigate the risk of injury and that the company had relied, to some extent, on the principal contractor to mitigate the risk.
Her Honour commented that relying on others is dangerous when liability arises for the person performing the work, and observed that it was clear from the falls and subsequent injury sustained in this case that the defendant had failed to comply with its duty and persons were exposed to risk.
Magistrate Coates had regard to the objects of the work health and safety legislation, including to protect persons entering worksites and coming into contact with businesses’ activities, and to ensure the health and safety of other persons is not put at risk by work. Her Honour acknowledged that deterrence was a significant factor to be reflected in the penalty. In mitigation, her Honour took into consideration the defendant’s relatively early guilty plea, and its financial difficulties as a small family business, with its income having significantly decreased in the last few years and as a result of the COVID-19 pandemic. Her Honour observed that the defendant director presented as a hardworking man supporting his family and commended him for his commitment to his business and his family. No convictions were recorded.
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Section 19(2) and section 32 Work Health and Safety Act 2011