By Michael Selinger

The NSW District Court has imposed a substantial fine on a company in relation to the death of an apprentice from a fall on a construction site. This serves as a sign that penalties for offences involving death or serious injury are on the increase.

On Monday 28 March, in the decision of Safe Work NSW v Co-Wynn Building Contractors Pty Ltd (2018)

the Court imposed a fine of $405,000 (reduced from $450,000 due a plea of guilty) out of a potential maximum of $1,500,000. The level of the penalty reflects a move towards increasing fines, which historically have been at $200,000 to $300,000 for similar offences. It also accords with appeals that have been lodged (but not yet determined) by SafeWork NSW to the Court of Criminal Appeal seeking higher penalties for serious offences.

What happened on the day

On 30 June 2015, Co-Wynn Building Contractors (the offender) was completing work on a site at St Patrick’s College, Strathfield. Dylan Smith (an apprentice) and Alex Carveth, supervised by Alex Johnson, were constructing a walkway beneath the apex point of a roof. This required them to lay boards in the centre of the roof trusses, using a scissor lift to raise the boards to a height underneath the bottom chord and then place the boards on this bottom chord.

At 1pm on this day, Mr Johnson joined them on the site and at 1:15pm, Mr Carveth left the site. At 1:55pm, Mr Johnson advised Mr Smith that he needed to go to his office. He told Mr Smith to obtain a string line from the worksite at ground level and meet him back up on the roof in a few minutes.

In order for Mr Smith to reach the ground, he was required to walk on the bottom chords and bracing while holding the top chords with his hands. At 2pm, Mr Smith was found on the floor beneath the fixed platform he was installing. He suffered serious head injuries and, after undergoing surgery, was placed in an induced coma. On 5 July 2015, he was taken off life support and died.

An internal investigation report completed on the day of the incident by the offender identified the cause of the incident as: lack of supervision, inexperience, and working at heights. The offender did not have a Safe Work Method Statement (SWMS) as required for work involving the risk of a fall of more than 2m under clause 299(1) Work Health and Safety Regulation 2011.

The offender did have a SWMS for December the previous year, however, this was never signed by Mr Smith. The December SWMS required a ‘competent person’ to work in the roof trusses as well as using a fall arrest system. While he was a highly regarded apprentice with no history of ‘skylarking,’ Mr Smith was not a ‘competent person’ in accordance with the definition provided by the Managing Risks of Falls at Workplaces Code of Practice 2011 (a person who has acquired through training, qualification or experience the knowledge and skills to carry out a task).

Two major failures

In the judgment, His Honour attributed the incident to two major failures:

• failure to provide a SWMS, and
• failure to provide proper and adequate training.

The relevant precautions were found to be well known within the industry, readily available, simple to implement and at a low cost to the offender. The risk of falling and the possibility of death or serious injury were obvious and as such, His Honour considered the seriousness of the failures to be great.

In considering the need for deterrence, the judge found that general deterrence was highly necessary due to the prevalence of risk of fall incidents within the building and construction industry. While a need for specific deterrence was also found, consideration was given to the fact that prior to the incident, the offender did have safety systems in place.

The fact that the injury harm and loss was substantial was found to be an aggravating factor. The incident had a significant impact on the deceased’s family and as such, the gravity of the victim impact statements was taken into account.

The Court, however, considered a number of mitigating factors – the offender did not have any prior convictions in this regard, was extremely cooperative with investigations, showed immense remorse, and had good prospects of rehabilitation.

Lessons for you

The case demonstrates the importance of implementing systems to protect workers who are exposed to serious risks of injury, particularly vulnerable workers such as apprentices. Although the company in this case had good systems in place and a long history of operating safely for many years, the failure to ensure that the apprentice was inducted and trained into the work, and he was not adequately supervised, led to the tragedy.