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January 2020

Failure to carry out inspection and testing leads to two workers falling from height

Failure to carry out inspection and testing leads to two workers falling from height

SafeWork NSW v Building Maintenance Unit Service Pty Ltd (2019)

Facts

Building Maintenance Unit Service (the Company) was responsible for servicing and maintaining the building maintenance units (BMUs) of a 13-storey commercial building in Sydney for 10 years. These BMUs were used to transport window cleaners up and down the side of the building. The Company did not employ the staff used to clean the windows, nor was it responsible for contracting them. However, the Company was responsible for setting up the BMUs and inducting the contractors who were engaged to use it.

An incident occurred when a pair of contractors were using a BMU on the 12th storey to clean windows. Extensive cracking in the bolts of the BMU caused a fracture in the connection box, leading the BMU to fall between 25 and 30 metres. Both contractors suffered serious and extensive injuries as a result of the fall.

Judgment

District Court Judge Scotting confirmed the risk of injury was reasonably foreseeable and known by the Company. The Company knew the relevant Australian Standard required the BMU to undergo a major inspection after being in service for 10 years, yet the Company did not prompt the building property management to order this inspection.

Additionally, Judge Scotting singled out the Company as a specialist service provider for BMUs, stating they “ought to have known” there were forces exerting pressure onto the bolts and these forces were capable of causing harm. Given the well-known purpose of the BMU – to transport workers to great heights – the likely consequences of the risk were “obvious and serious”. The required investigation and testing was revealed to be simple and only cost $2,000, compounding the Company’s culpability.

The Company was convicted and ordered to pay a fine of $400,000, which was reduced to $300,000 due to a guilty plea.

Lessons

This case is an example of the courts’ tough approach on companies that are aware of foreseeable and serious risks of injury, yet fail to implement known safety procedures. The costs to reduce risks are only relevant if they are grossly disproportionate to the gravity of the risk. If there is any evidence that the cost of reducing a safety risk is inexpensive and you still did not resolve the safety issue, the courts will view this as an aggravating feature of the offence.

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