Thinking of ‘handballing’ your health and safety obligations? Think again.

The obligation to ensure a safe working environment is a non-delegable duty under health and safety laws. Strict compliance is required. If work is being undertaken in an unsafe manner, it is no defence that the structures or equipment used weren’t supplied by your business. If your business has management and control over the activity as a whole and can take, or direct, steps to ensure safety, then it must do so, or it will be liable for significant penalties. Blaming another party isn’t going to absolve you of culpability when health and safety obligations are breached.

This was a key consideration in a recent judgment against a company and its director in which there was a dispute over who controlled the structures and equipment involved in a serious incident.

The incident

In late 2015, construction company Palladian Three Pty Ltd (Palladian) contracted to construct five townhouses in Pascoe Vale, Victoria. Palladian and its architect director, Mr Sackl, had the management and control of the construction site.

A critical issue for the jury in the 7-day trial was whether Mr Sackl engaged a father and son rendering team, trading as North Rendering, to undertake the rendering work or if, as Mr Sackl alleged, North Rendering was there just to provide a quote. The jury found that it had been engaged to perform the rendering work on the day.

There was a timber frame constructed on the west side of Unit 1 with an aluminium plank sitting on top of the frame. The Court could not determine who built it, with both Mr Sackl and North Rendering alleging the other had built it. Nevertheless, the Court was able to establish that North Rendering worked on top of the frame on the day of the incident and that Mr Sackl was aware that no proper scaffolding was being used to prevent falling from a height.

During the day, the father from North Rendering climbed on the roof and lost his balance. He fell 3.2 metres to the ground, suffering significant injuries.

The judgment

Palladian and Mr Sackl were prosecuted in the Victorian County Court.

They unsuccessfully defended the matter. The Court found that the company and Mr Sackl were aware of the risk of falls, and failed to ensure that there was scaffolding was in place to allow safe working from height.

In sentencing Mr Sackl and the company, the Court noted their financial positions and determined that it was not likely the company would pay the fine. The Court also noted that North Rendering workers failed to take reasonable care for their own safety, but that did not reduce the culpability of Mr Sackl and his company.

Mr Sackl was fined $70,000 and Palladian fined $250,000.