SafeWork NSW v ProjectCorp Australia Pty Ltd (2017)

Facts

ProjectCorp Australia Pty Ltd (the Company) was the principal contractor at a construction of a block of residential units (the site) NMK was contracted by the Company to perform excavation and demolition works. Laison Earthmoving and Plant Hire Pty Limited (Laison) was contracted by NMK to provide labour for the demolition and excavation works at the site. Mr Kieran Dodge was employed by Laison as a machine operator.

On 26 August 2013, Mr Dodge was operating an excavator at the site. While operating the sifting bucket of the excavator, a steel bar flew into the open cabin of the excavator and pierced Mr Dodge’s skull. The glass front screen of the excavator was locked open into a fixed position, which meant that there was no protection between Mr Dodge and the front of the excavator.

Judgment

Judge Russell found that the Company failed to ensure that Mr Dodge was provided with a specific instruction that the excavator was to be operated with the front window closed. The Company also failed to ensure that the work health and safety policies for the site were enforced at the time of the incident.

The Court noted that the Company lacked “a plain English direction to the operator of any excavator to have the safety window closed at all times, and to have appropriate supervision to detect any breach of that requirement for working on the site.”

The Court also referred to the Code of Practice Managing the Risks of Plant, stating it was relevant for the principal contractor in that “supervisors should take action to correct any unsafe work practices associated with plant as soon as possible, otherwise workers may think that unsafe work practices are acceptable.”

Further, the Court noted that the Australian Standard that applied to the demolition of structures (which related to the work in this case) provided that “all plant and equipment used on the demolition site shall be used and maintained as recommended by the equipment’s supplier and/or manufacturer.”

NMK (who owned the excavator) was ordered to pay $120,000, and ProjectCorp Australia was fined $90,000.

Lessons

Businesses need to be conscious that if they are responsible for a workplace where plant and equipment are being used, it is necessary to undertake inspection and review of the use of that plant to ensure it is being used 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.