On 7 September 2021, a sole trader was sentenced in the Townsville Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with his primary health and safety duty under section 19(1) of the Act. Acting Magistrate Peter Smid fined the defendant $15,000 and did not record a conviction.
The defendant conducted a business providing roofing labour as a sole trader. He was subcontracted by a roofing company to install klip-lok sheeting on an approximately 2.9-metre-high roof at a residential construction site. The defendant had previously been contracted by that roofing company on numerous occasions and guardrail would normally be supplied by the company. The defendant employed a worker to perform work at the site as part of his business.
The contracting roofing company had prepared a Safe Work Method Statement (SWMS) relevant to the work activities to be conducted which outlined the scope of the works to include ‘installation of roofing/guttering and downpipes using guardrail’ and stipulated that workers must use an electronic work platform and/or a harness where work was conducted at heights over 2 metres. No guardrail or any fall prevention measures were provided by that company for use at the site when work commenced. Another sole trader, also engaged to perform roofing work at the site, raised concerns during a discussion with the defendant regarding the absence of guardrail at the workplace and suggested to the defendant that they walk away from the job. The defendant said that they would proceed in the absence of edge protection and did not require his worker use a harness as part of a travel restraint system while on the roof.
On 7 November 2019, the defendant and his worker were present on the roof at the site installing klip-lok roof sheeting. Klip-lok sheets are clipped into place by workers standing on the sheet and pressing down with their foot. The worker was installing the last klip-lok sheet when his right foot slipped, causing him to lose balance and fall over the edge of the roof to the ground below. The worker sustained fractures to his right tibia and fibula, requiring surgical repair.
The defendant was charged with failing to comply with his health and safety duty through failing to request the provision of appropriate fall prevention measures before work commenced on the roof, failing to direct his worker to wear a harness as part of a travel restraint system and failing to prohibit the worker from commencing work on the roof until such measures were in place. The defendant’s failures exposed the worker to a risk of death or serious injury.
In sentencing the defendant, Acting Magistrate Smid observed that he is a 41-year-old married man with children and a mortgage. His Honour had regard to the defendant’s combined annual household income of $130k. Since the incident, the defendant had given up conducting business as a sole trader and commenced working for a company performing roofing work.
His Honour acknowledged that the defendant well knew that safety standards were not observed at the site and should have stopped work until measures were implemented or walked off. His Honour acknowledged the submissions by defence counsel regarding the pressure the defendant faced to get the work done and the potential impact walking off would have had on his ongoing business. It was noted that the risk was understandably considered by the defendant to be very minimal, given the roof was nearly flat and did not have any hidden voids as in other cases. However, the defendant’s responsibility was then and there, and he assumed the risk even when another had complained to him about the lack of guardrail.
His Honour had regard to the relevant principles in section 9 of the Penalties and Sentences Act 1992, identifying the need for general deterrence to send a message to others of the consequences of failing to comply with their obligations, although considered there was no role for specific deterrence in this case. It was acknowledged that the worker sustained serious, although not life-threatening, injuries. His Honour had regard to the defendant’s early guilty plea, his good record and cooperation with the investigation.
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Sections 32 and 19(1) of the Work Health and Safety Act 2011