WorkCover Authority of NSW v Merhis Construction Pty Ltd

[2014] NSWDC 373

District Court

New South Wales

Medium Neutral Citation:	WorkCover Authority of NSW v Merhis Construction Pty Ltd [2014] NSWDC 373
Hearing dates:	13 October 2014
Date of orders:	13 October 2014
Decision date:	13 October 2014
Jurisdiction:	Criminal
Before:	Curtis J
Decision:	The defendant is convicted and fined
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – risk of death or serious injury SENTENCE PRINCIPLES – remorse OTHER - worker fell from an A-frame ladder - defendant was the head contractor - impaling injury - failure to ensure good housekeeping on the site
Legislation Cited:	Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001
Category:	Sentence
Parties:	WorkCover Authority of New South Wales (Prosecutor) Merhis Construction Pty Ltd (Defendant)
Representation:	Counsel: C Magee appeared for the Prosecutor W Thompson appeared for the Defendant Solicitor: WorkCover Legal Group for the Prosecutor Gadens Lawyers for the Defendant
File Number(s):	2012/393081
Publication restriction:	None

1. The defendant, Merhis Constructions Pty Limited (Merhis Constructions), pleads guilty to the charge that on 21 February 2011 at Sutherland it contravened section 8(2) of the Occupational Health and Safety Act 2000 in that being an employer it failed by its acts or omissions to ensure that a person not in its employ, Mr Paul Smith, was not exposed to risks to his health and safety.

2. On the day in question Mr Smith fell from an A-frame ladder upon which he was standing, installing plumbing on the site of a construction project in which Merhis Construction was the head contractor.

3. Mr Smith did not fall far, perhaps one to one and a half metres, but he fell upon the stillage of a scaffolding pallet. Mr Smith was impaled in the area of his armpit upon a steel upright some 70 centimetres high.

4. The defendant’s failures were manifold. It failed to ban the use of A-frame ladders on the site, and require that platform ladders be used for all work at heights. It failed to ensure that that subcontractor did not use A-frame ladders, and it failed to ensure that good housekeeping practices were followed so that the stillage was not in a position where Mr Smith may fall upon it.

5. Merhis Constructions was not unconscious of its responsibilities in relation to matters of occupational health and safety. It engaged Mr Bob Turner, an experienced Occupational Health and Safety Consultant, to provide advice. It employed Mr Simon Turner and Mr Noah Iakopo as full-time Occupational Health and Safety Coordinators. It also employed Mr Grace as a supervisor on site. Mr Turner and Mr Grace conducted regular toolbox talks.

6. The defendant commissioned a Corporate Safety Management Plan that sought to identify all risks arising from the work in hand. The defendant also required that its subcontractors, including Mr Smith’s employer, provide Merhis with Safe Working Documentation.

7. Unfortunately by virtue of a lack of adversion rather than a want of care, the Safe Work Method Statement provided by Mr Smith’s employer to the defendant did not deal specifically with the problems associated with the work upon which Mr Smith was engaged. The Safe Work Method Statement spoke of the use of ladders and merely required that the worker was not to climb higher than the third rung from the top and ensure that the legs were spread apart.

8. The Safe Work Method Statement prepared in relation to vertical pipe work provided as follows:

“In installation ensure clear flat floors are available and appropriate access of equipment eg ladders, mobile scaffolding et cetera is provided.

9. The safe work instruction in relation to step ladders merely required that the worker ensured the step ladder legs were fully spread and the worker wasn’t to climb higher than the third step from the top.

10. I think it reasonable to recognise that a platform ladder would have been a safer alternative, and in failing to ensure that Mr Smith used such a ladder, the defendant failed in its duty.

11. The reason that it failed is in part lack of adversion but I think it relevant to note that the only regulation extant at the time within Division 6 of the Occupational Health and Safety Regulation 2001 addressed itself to prevention of falls from heights in these terms:

1. An employer must ensure that risk associated with falls from a height are controlled by use of the following measures:

a) provision and maintenance of

(i) stable and securely

fenced platform such as scaffolding or other form of

portable work platform

or

(ii) if compliance with subparagraph (i) is not reasonably

practicable secure perimeter screens, fencing, handrails,

or other forms of physical barriers that are capable of

preventing the fall of a person,

or

(iii) if compliance with subparagraph 2 that is (ii) is not

reasonably practicable other forms of physical restraints

that are capable of arresting the fall of a person from a

height of more than two metres.

12. Mr Smith was not at risk of falling from a height of more than two metres and if the persons preparing the Safe Work Method Statements had been concerned to seek assistance from the regulations they would not have come across a regulation banning the use of A-frame or requiring the use of platform ladders on construction sites.

13. A safety alert issued by WorkCover in May 2010 reminded employers that the use of ladders should only be considered if other safe alternatives such as scaffolding or elevated working platforms are not reasonably practicable and that ladders should only be used to carry out light work of short duration.

14. While the work upon which Mr Smith was engaged, installing plastic pipes, was light work, and at each place of short duration, the safety alert directed the workers to ensure that they had at least three points of contact while working from the ladder.

15. There is no evidence that this alert ever came to the attention of the defendant or the subcontractor.

16. The gravity of this offence is in part reflected by the injuries suffered by Mr Smith and the extent to which the defendant departed from the standards of a reasonable man is not that great. The defendant was most active in attempting to ensure work place safety and required of its subcontractors that they turn their mind to all possible risks that may have occurred.

17. There is evidence that the defendant did turn its mind to such risks as it perceived and so did the subcontractor Mr Smith’s employer. The failure was a failure of adversion not a failure of care in relation to the use of A frame ladders.

18. I think a more serious omission was the failure to ensure good housekeeping on the site. The presence of an upright steel post beside a ladder from which a man may fall created a recognisable risk which should have been observed by the supervisors on the ground at the site. Bearing in mind the correlation between the gravity of the risk and the culpability associated with its existence, the gravity of this offence is, while not modest, not great.

19. The evidence is that the defendant went to some trouble and expense after this event purchasing A-frame ladders for use by its subcontractors rather than merely requiring those subcontractors to provide them in discharging the works.

20. The defendant company when it traded was a large company involved on multiple products in a high risk industry and has no previous convictions. In the circumstances this record is commendable

21. The company has expressed contrition and remorse and entered a plea at the first reasonable opportunity. I believe that an appropriate penalty is $100,000 from which the defendant is entitled to a deduction of 25% in respect of its early plea and cooperation.

22. The defendant is convicted and fined $75,000.

23. I order that a moiety of the fine be afforded to WorkCover and I order the defendant to pay WorkCover’s costs as agreed or assessed.

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Decision last updated: 14 December 2015