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January 2020

Contractor’s decision to change a safe method of work results in injury

SafeWork NSW v Tolputt (2017)

Facts

Mr Tolputt was as a specialist climber engaged by Bradshaw Tree Services to access and dismantle a tree that had collapsed on a house during a storm. Bradshaw Tree Services had prepared a safe method for removal of the tree but when Mr Tolputt arrived at the site, he implemented a different system of work as he considered the system proposed by Bradshaw Tree Services would not work. Mr Tolputt did not discuss the method of work with Bradshaw Tree Services but rather directed other labourers to assist him in cutting small pieces from the tree and bringing them down via a rope and pulley. The load would swing slowly as it was lowered.

While one section was being lowered using the rope, a labourer did not expect it to swing as hard as it did and the section hit his left shoulder. The section then swung across to hit another labourer, knocking him off balance and causing him to stumble and roll towards the edge of the roof. Another worker grabbed his ankle but was unable to
maintain his grip as the labourer went over the edge of the roof. Although he managed to grab the gutter at the roof edge, it came off the roof fascia and he fell approximately 11 metres to the ground below, suffering significant injuries.

A prosecution was commenced against Mr Tolputt.

Judgment

Mr Tolputt pleaded guilty to a failure to take reasonable care to ensure his acts or omissions did not affect the health and safety of others. The Court found that the offence was serious given that the risk of injury from swinging timber and from falls from the roof were clearly foreseeable.

Secondly, the potential consequences of those risks eventuating were clearly foreseeable and included potential fatal injury.

The Court found that Mr Tolputt should not have proceeded with the task but should have consulted with Bradshaw Tree Services about an alternative method and, if his method was to be used, to ensure the use of travel restraint systems.

Mr Tolputt was fined $20,000 out of a potential $150,000.

Lessons

This case is a warning to individuals, such as sole traders, who owe duties to their colleagues on the worksite, to take care to follow safe work procedures. In particular, if an assessment is made that a proposed system of work is not safe, steps should be taken to consult with the designer of that system of work before unilaterally changing the process.

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