By Michael Selinger
In the recent case of SafeWork NSW v Poletti Corporation Pty Ltd (2019), an installer of a jumpform screen system at a construction site unsuccessfully defended a work health & safety prosecution, when it was found that it had failed to take reasonably practicable steps to ensure other workers did not fall through a gap between the jumpscreen and the building.
Poletti Corporation Pty Ltd was contracted by Karimbla Construction Services Pty Ltd to supply, install and operate a jumpform screen system for the construction of two residential apartment towers in Parramatta (one of the towers being the West Tower).
Karimbla was the principal contractor that also engaged a painting contractor for the project, MJM Painting Services Pty Ltd.
Mr Posa, the injured person, was subcontracted by MJM as a painter. He was painting the exterior of the West Tower when he fell 6 metres from a work platform attached to a jumpform screen that provided edge protection for construction workers.
Mr Posa suffered severe injuries when he fell through a gap formed by the architectural design of the building and the edge of the work platform (the Void).
A week before the incident, the safety officer of Karimbla, Mr Hekimian, thought the gap would create a risk to workers, so he wanted hinged flaps installed.
A near miss had occurred earlier as well.
Mr Hekimian raised these concerns with Poletti Corporation’s supervisor and was then told to speak to Mr Poletti, the company director.
Mr Poletti responded that the horizontal and vertical gaps complied with the Australian Standard and that he would not be installing hinged flaps.
Mr Hekimian wanted further measures to protect the workers, so he sought approvals from Karimbla to require the workers to use harnesses attached to static lines.
He obtained the approval and called an extraordinary safety meeting of contractors and told the representatives of the relevant subcontractors that their workers would be required to use the harnesses. Mr Poletti attended that meeting on behalf of Poletti Corporation and Mr Maric attended on behalf of MJM.
When the incident happened, Mr Posa was not told that he needed to wear a harness.
He approached the gap when a piece of plywood had been installed over it. He kicked the plywood to see if it was secure and stepped onto it to paint the column.
The plywood gave way and he fell about 6 metres from Level 27 to Level 25. He suffered a head laceration, an injury to his shoulder, a fractured wrist and three fractured ribs.
SafeWork NSW charged the Poletti Corporation pursuant to section 19(1) of the Work Health and Safety Act 2011 (the Act) and an alternate charge pursuant to section 19(2) of the Act, because it was not clear if Mr Posa was doing work for the Company, as required by s19(1).
The court found that Mr Posa did not fall under the definition of ‘worker’ as he was not working for Poletti Corporation, but rather worked for Karimbla, via its subcontractor MJM.
Accordingly, Poletti Corporation owed a duty of care to Mr Posa under s19(2) of the Act, being a person put at risk by the work undertaken by the Company.
Poletti Corporation unsuccessfully defended the matter.
The NSW District Court found Poletti Corporation to be in breach of section 19(2) of the Work Health and Safety Act 2011 (Category 2 offence) as it failed to:
- identify the hazard posed by the Void;
- conduct and document a risk assessment in relation to any risks associated with the existence of the Void;
- ensure that all voids were covered with a secure, permanent structure and/or installed with hinged flaps;
- prevent access to the work platform until the Void was made safe; and
- ensure, or make arrangements to ensure on behalf of the Company, that a static line was installed to enable workers to use height safety personal protective equipment.
The court considered the above measures that should have taken by Poletti Corporation were reasonably practicable because:
- the likelihood of the risk occurring was moderate to high – it was a common practice for the workers to cover the Void with a piece of plywood which created a further risk that a worker would step onto the plywood that was not intended to hold their weight;
- the degree of harm that might eventuate if a person fell through the Void was significant and included a risk of death;
- the risk was obvious as the Void was a large gap through which a person could fall; and
- the Company knew or ought to have known about the risk from the time they were given the plans for the West Tower for the purpose of designing the system.
As a result, the District Court held that Poletti Corporation’s breach of duty exposed Mr Posa to a risk of death or serious injury.
Voids are common and hazardous risks, especially in construction worksites, yet these can be avoided by implementing safety measures at a modest cost.
Employers should always bear in mind that they can be liable not only for their own employees, but for other persons who are carrying out work in connection to their business.
In this case, although Mr Posa was not contracted by Poletti Corporation, the company still had duty to Mr Posa as he was exposed to risks created by it.