By Michael Selinger
In SafeWork NSW v MGK Constructions Pty Ltd (2019), an employer who was held liable for its employee falling from heights has avoided also being ordered to pay compensation to the injured worker, in addition to the fine of $75,000.
MGK Constructions Pty Ltd, a carpentry and building company (the Company), had been subcontracted to the principal contractor Provincial Homes Pty Ltd at a construction site of a two-storey residential premises in St Ives (the Premises). Mr Vanikone Chanthavixay was employed by the Company.
Between 10 May and 14 May 2017, the first floor of the Premises was installed. A void was cut out in the first floor by the Company for the installation of a staircase.
The stair void was in the form of an ‘L’ shape and was approximately 3.665 metres above the concrete ground floor.
On 15 May 2017, the Company erected two internal wall frames around the stair void which provided edge protection for two sides of the void.
On 19 May 2017, the trusses were being lifted to the first floor of the Premises.
Mr Keramea, the sole director of the Company, saw that the void had not been covered and changed the system of work to standing trusses on the side of the void where the internal wall frames were installed.
Mr Chanthavixay was standing on a step ladder adjacent to the stair void to nail the trusses to the top plate of the wall frames. While stepping down from the ladder, Mr Chanthavixay fell through the void and landed on the concrete ground floor below.
As a result, Mr Chanthavixay sustained a right sided parietal haematoma with laceration, right chest wall pain, a fractured finger and a soft tissue injury to his right ankle.
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 (the Act), thereby exposing the worker to a risk of death or serious injury.
The Company was fined $100,000 but this was reduced to $75,000 to reflect the guilty plea.
The District Court considered the following in determining objective seriousness:
- the risk was obvious;
- it was the usual practice of the Company to not undertake work until the voids were adequately protected;
- the Company tried to work around the inadequate protection of the void by having the workers work from the side where adequate protection was in place, however this was inadequate and did not prevent Mr Chanthavixay from working on the unprotected side;
- the likelihood of the risk occurring was moderate; and
- the potential consequences of the risk coming home were significant and included the risk of death.
The Court found that the steps to be taken to control or eliminate the risks were relatively inexpensive, but to some extent inconvenient (e.g. the refusal to do work on the day of incident). However, there were clearly steps that were required to be taken that were not grossly disproportionate to the risk.
The Court also considered whether the Court should make a restoration order under Division 2 of Part 13 of the Act.
This was because Mr Chanthavixay suffered financial hardship as a result of his injury. The Court found that Mr Chanthavixay’s economic loss was directly related to the commission of the offence.
However, the Court decided not to make an order under section 237 of the Act to compensate Mr Chanthavixay for the economic loss for the reasons below:
- the paucity of information available about the loss suffered;
- any order made by the Court could underestimate or overestimate the loss which would cause unfairness;
- the order may have unintended consequences on any legal rights Mr Chanthavixay may have; and
- there has been no recent contact with Mr Chanthavixay and the order may be difficult to be enforced.
Nevertheless, the Court formed the view that the Court has the power to make such an order under section 237 of the Act.
This is the first case where the Court considered a restoration order under section 237 of the Act.
Although the Court decided not to make an order in this case, employers should bear in mind that there is a possibility that they may not only be ordered to pay penalties, but also compensation to an employee if the employee’s economic loss arising from the injury is directly related to the employer’s commission of the offence.