Liam Fraser (Partner) at Kingston Reid.
Xavier Burton (Lawyer) at Kingston Reid.
Businesses are on notice. With fall and height-related safety incidents being prosecuted in record numbers, they can expect regulators to be on red alert to any breaches of the law. In NSW alone, falls from heights account for more than 50 per cent of all injuries in the construction sector – and other states are little different.
What highlighted the issue was a string of recent NSW District Court judgments, including that of Judge Russell’s on 8 February 2022. The defendant was fined $400,000 (reduced to $300,000 for an early guilty plea) when a construction worker was seriously injured after falling more than six metres through an inadequately protected penetration in a roof.
Russell DCJ also took the opportunity to address the dramatic increase in height-related incidents and prosecutions, with his final order being to alert the Minister about his decision. If his intention was to draw public attention to this issue, then he could not have been more successful with the incoming Minister for Work Health and Safety, Sophie Cotsis, recently launching a 12-month campaign of surprise inspections to reduce fatal falls on NSW building sites.
The “anytime, anywhere” campaign will see inspectors visiting construction sites across the State and not hesitating to stop work on site, issue fines and consider prosecution against businesses and individuals breaking the law and flaunting critical safety regulations.
Noting that falls from heights is the number one cause of traumatic fatalities on the State’s construction sites, with 16 people killed between 2018 and 2022, Cotsis emphasised there would be “zero-tolerance” for putting workers’ safety at risk. “My message is this: expect an unannounced visit from an inspector who will throw the book at anyone breaking the law. We must end this ‘she’ll be right mate’ mentality.”
Although Cotsis’s comments relate to NSW, there has been a strong occurrence of working at height-related prosecutions in other states. Queensland has had five height-related prosecutions in the past six months alone.
In December, a Queensland company was sentenced for breaching its duty and fined $70,000. As the Queensland Office of the Work Health and Safety Prosecutor noted, the subsequent WHSQ investigation revealed that, while the defendant had several safety systems in place, including specific working at height procedures that mandated the use of fall-restraint systems, these had not been complied with and no fall arrest equipment was used.
The director of another Queensland business was personally charged and fined $10,000 in May 2022 for failing to exercise due diligence to ensure his company complied with its duties. That prosecution arose after a worker’s skull was fractured from falling almost five metres through a polycarbonate roofing strip. No fall prevention devices or fall arrest systems were being implemented at the time.
In Victoria, a building company was recently convicted and fined $390,000 after a worker died following a fall at a residential construction site in the Melbourne suburb of Templestowe – the fourth death after a fall from height this year. Another 390 workers have been seriously injured.
Victoria’s WorkSafe Executive Director of Health and Safety Narelle Beer said the company’s failure to provide safe scaffolding was a serious departure from its legal obligations. “The risk of a fall from height, especially in the construction industry, is well-known and so are the measures to reduce it — employers have absolutely no excuses.” She added that was frustrating because falls from height are entirely preventable. “It doesn’t matter whether a project involves a day’s work or five minutes — it’s never okay to take short-cuts when working at heights.”
What these court decisions highlight is that the same procedural failings happen time and again: insufficient or non-existent edge protection, insufficient or non-existent fall arrest systems, and inadequate or non-occurrence of training about the dangers of working at height. These court decisions, which have found companies and directors both liable, are leading to significant fines being issued.
So, the message from the courts, as well as regulators and governments, to businesses (especially in construction) is crystal clear – breach the fall and height-related safety regulations at your peril. For persons conducting businesses or undertakings (PCBUs), it means the need to review their working at height protocols and procedures to ensure compliance and to prepare for a potential visit from an inspectorate. At the very least, it means complying with the relevant Code of Practice.
Remember, too, inspectors are generally becoming more sophisticated in their investigation methodology and workers and PCBUs need to be aware of this before any visit. Certainly, record keeping of training and procedures need to be in order.
Narelle Beer was correct. These accidents are preventable, and it behoves businesses and workers to take all reasonably practicable measures to minimise fall and height-related incidents and all the inevitable human trauma that occurs every time there is a serious injury or death.