WorkSafe Victoria v McNeill (2019)

Facts

Mr McNeill was a sole trader who specialised in tree cutting and stump removal. A demolition company engaged Mr McNeill to remove a large tree from a residential site at which a company was performing excavation works.

Mr McNeill started to remove the tree by using a chain saw. He was assisted by a company employee who was using an excavator to maintain tension on a rope that was attached to the tree. The rope was used to guide the tree as it was being cut into an empty car space.

During this operation, the rope snapped and the tree fell onto the next door property.

No workers or bystanders were injured, however serious damage was done to the car on the adjoining property.

Judgment

The Moorabbin Magistrates’ Court found Mr McNeill to be in breach of section 24 (1) of the Occupational Health and Safety Act 2004 and fined him $1,800.

In reaching this determination, the Court found it was reasonably practicable for Mr McNeill to have removed the tree using safer, more manageable methods, such as chopping down the tree in small segments.

The Court also found that it was reasonably practicable for Mr McNeill to use alternative rigging systems to control lowering the tree to the ground. The rope and excavator were not methods capable of ensuring bystanders were not exposed to risks to their health and safety.

Lessons

Contractors need to ensure they take all reasonably practicable steps when performing their work – even if they are engaged by a third party and performing their work on the third party’s worksite.

Contractors will also need to consider alternative methods, often set out in codes of practices or industry guidelines, for completing their tasks safely.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.