SafeWork NSW v Aptec Constructions Pty Limited (2019)

Facts

Aptec Constructions (company) was a building and construction company managed by a single director who was also the company’s sole owner. The company was engaged as the principal contractor for the construction of an apartment complex. The company engaged a concrete pumping company to pump concrete onto the worksite. This task was to be completed by two workers who both held high-risk licences, with one worker having 26 years of industry experience.

The workers were required to pour concrete on the fourth level of the construction site, which was unguarded by temporary edge protection at the time.

The company knew the fourth level was unguarded and had ordered scaffolding, however it was yet to be installed. Despite this, the company directed the workers to proceed with the concrete pouring.

The area in which the workers were pouring concrete was lined with steel bars that made it difficult to handle and manoeuvre the concrete-pouring hose.

The workers attempted to counteract this difficulty by using greater force and pressure with the hose.

This resulted in the hose becoming more difficult to control. One worker struggled to maintain control over the hose as it jerked around. The worker then lost their footing and fell 3.6 metres below, suffering significant brain injuries as a result.

Judgment

The company entered a guilty plea for failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011, thereby exposing the worker to a risk of death or serious injury. The company was fined $240,000 but this was reduced to $160,000 by reason of capacity to pay and further by 25% to reflect the plea of guilty.

The NSW District Court found the company’s level of culpability to be in the high end of the mid-range for the following reasons:

• there was a foreseeable risk to safety;
• the risk was clear and obvious, known to and identified by the company;
• this incident was completely preventable, with measures such as edge protection being available and feasible;
• there was considerable guidance material publicly available relating to the risk of falls from height at workplaces – the company having access to the National Code of Practice for the Prevention of Falls in General Construction, the Code of Practice Managing the Risk of Falls at Workplaces and AS/NZS 4994.1:2009 Temporary Edge Protection – General, with all three source materials providing clear guidance and advice for work involving the risk of a fall and reasonably practicable controls that could have been implemented;
• no temporary edge protection was installed on the fourth floor at the time of the incident; and
• the company instructed the workers to complete the concrete works, which involved the workers working in the vicinity of the unprotected edge.

Lessons

The risk of falling from an unprotected edge is well known on worksites. As a result of this known risk, companies that do not take reasonably practicable steps to reduce this hazard will likely face prosecution from the safety regulator. In this case, the company’s decision to acknowledge the hazard and direct workers to complete the task regardless resulted in the Court finding the company guilty.

Companies discharging their work health and safety duties cannot solely rely on the experience of their workers. This injury occurred even though both workers were experienced and held high-risk work licences. The Court did not consider the qualifications of the workers as a mitigating factor for the company’s breach of duty.

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.