SafeWork NSW v NSW Bricklaying Pty Ltd (2020)
NSW Bricklaying Pty Ltd supplied bricklayers to construction sites. At the site of the incident, employees of NSW Bricklaying constructed an approximately 6-metre-high brick wall as part of a residential duplex development. NSW Bricklaying did not adequately brace or incorporate the brick wall into the complete structure, and consequently, the brick wall collapsed onto a carpenter, resulting in fatal injuries.
NSW Bricklaying defended its conduct and entered a plea of not guilty in response to SafeWork NSW’s prosecution.
NSW Bricklaying was unsuccessful at trial, with the NSW District Court determining the company’s conduct was in breach of its work health and safety obligations.
The Court found NSW Bricklaying’s conduct placed other persons on the worksite at risk and was in breach of its primary duty of care under section 19 (2) of the Work Health and Safety Act 2011 (NSW). The Court determined that the company’s penalty will be imposed at a later date.
In making its determination, the Court found the likelihood of the wall collapsing was very high. NSW Bricklaying did not install any cross walls, leaving the wall vulnerable to side loads from the wind.
The Court found the degree of harm caused by the unsecured wall was serious given the number of workers required to work in the space adjacent to the brick wall and in the potential fall zone.
Finally, the Court found the risk of the wall collapsing was obvious, and the company should have had knowledge of the ways of eliminating or minimising this risk. Therefore, NSW Bricklaying’s breach of duty, by failing to take the requisite safety steps, exposed the fatally injured carpenter to a risk of death.
The Court found it “difficult to accept” that NSW Bricklaying did not have actual knowledge of the risk. The Court noted that the risk of unsupported walls falling on workers had been clearly raised in the free and widely available SafeWork NSW Guide, Masonry Wall Safety during Construction Work, which had been in circulation since 2009. In accepting the prosecution’s evidence, the Court found examples of preventative measures contained in the Guide were available to NSW Bricklaying without causing any significant inconvenience.
Outside of the Guide, the Court found that there were other safety precautions available to NSW Bricklaying, such as conducting a risk assessment, installing an exclusion zone with physical barricades to keep people outside the fall zone, and amending the safe work method statement to make providing information, training and advice to the company’s workers mandatory.
The Court found that NSW Bricklaying could not avoid its duty of care on the basis it was outside the scope of works. The Court rejected the company’s submission that it was not required to install a brace wall because it was never discussed with the construction site supervisor or that the company did not have to undertake a risk assessment after the wall was erected.
Companies in the construction industry need to understand that their duty of care does not wind up when the construction job finishes. NSW Bricklaying tried to avoid responsibility by stating the wall was standing when it completed construction and the task of ensuring the wall remained safely braced was the responsibility of the site supervisor.
Companies must also be aware that safety obligations cannot be limited to the job they are engaged to perform. In this decision, NSW Bricklaying did not implement any measures to eliminate the risk of the wall collapsing because it understood its job was only to lay bricks and any onsite safety, including safely bracing the wall, was the responsibility of the construction site supervisor.
Companies have a duty to complete a risk assessment. Had NSW Bricklaying completed the required risk assessment, with reference to the safety standards, it would have identified the risk of the partition wall collapsing and injuring a person in the fall zone.
Companies need to keep up to date with the safety standards of their relevant industry.
The relevant safety regulator for each state and territory publishes safety guides with helpful and important information for safe work practices. As seen in this decision, companies are expected to be across this information and courts will not look favourably on employers who do not turn their mind to the industry guides.