On 25 July 2024, a company was sentenced in the Wynnum Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’) when a worker received a spinal injury when, in the course of carrying our painting works for his employer, he fell approximately 3.4 metres from an unguarded balcony edge on a housing construction work site at Cannon Hill.

The injured person worked for a company which undertook the business of commercial and residential plastering and painting. It subcontracted with the Principal Contractor to undertake these activities at a housing construction worksite at Cannon Hill where a two storey residential care facility was being constructed.

The painting company had a safe work method statement (‘SWMS’) which identified, inter alia, hazards and risks associated with carrying out painting work, including work at height; not all of its workers had received instruction in to the SWMS for the site, including the injured person.

The principal contractor had arranged for the installation of perimeter scaffolding, which 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 20 November 2020, the injured person and a colleague commenced work at about 6:30 am and were tasked by their employer with painting the interior walls of the structure. In the course of undertaking these activities the workers became aware the incorrect colour code was being used. Before this could be rectified, and painted over, the workers waited for the paint to dry. In the interim period, the workers employer instructed the workers to access the first storey rear balcony area of unit 3 of the building to touch up painting of the external building wall.

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. The injured person was able to access the balcony through an open doorway. At the time that the worker accessed the balcony that afternoon, there was no barricade in place in the doorway to prevent access nor was there any signage to warn workers of the hazard of the unprotected balcony edge.

Whilst on the rear balcony area the injured person lost his balance and fell from the unprotected edge of the balcony to the ground below. Emergency services attended and the worker was transported to hospital where he was diagnosed with having a burst fracture of the T12 vertebrae of his thoracic spine, undergoing spinal surgery and discharged from hospital on 26 November 2020. No permanent physical injury was sustained.

The matter was reported and attended to by Workplace Health and Safety Queensland (‘WHSQ’) inspectors who, in part, addressed the risk of fall from height from the balcony through issuance of enforcement notices to the principal contractor.

Magistrate Silva outlined the salient features of the offending, observing that the perimeter scaffolding that had been in place, and removed, exposed the live edge of the balcony and brought the hazard in to existence. His Honour noted that both company’s had been prosecuted and there were elements of parity for him to keep in mind with regard to the appropriate sentence.

His Honour took in to account the plea was a timely one, there had been cooperation, including the director of the company voluntarily participating in a formal record of interview where statements against interest were made. His Honour noted that the injured worker did not have any permanent residual physical injury because of the incident. His Honour also noted the company had no previous convictions, that it was a small, family company which he accepted was not particularly profitable. His Honour accepted there had been demonstrated remorse by the company, through its director who had attended hospital on several occasions to visit the injured worker.

His Honour noted there was no reason to distinguish each defendant’s conduct as both were serious breaches. His Honour noted that the director had not been personally on site to directly supervise and observe the workplace to ensure it was safe as set out in its Safe Work Method Statement. His Honour imposed a fine of $75,000 and did not record a conviction.

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