SafeWork NSW v Poletti Corporation Pty Ltd (2019)

The Case

An installer of a jumpform screen system at a construction site unsuccessfully defended a work health and safety prosecution, when it was found that it had failed to take reasonably practicable steps to ensure workers did not fall through a gap between the jumpform screen and the building.

Karimbla Construction Services Pty Ltd (Karimbla) contracted Poletti Corporations Pty Ltd (Poletti) to supply, install and operate a jumpform screen system for the construction of two residential apartment towers in Parramatta (one of the towers being the West Tower). Karimbla was the principal contractor, which also engaged a painting contractor for the project, MJM Painting Services Pty Ltd (MJM). MJM subcontracted Mr Posa as a painter.

Mr Posa was painting the exterior of the West Tower when he fell 6 metres from a work platform attached to a jumpform screen that provided edge protection for construction workers. He suffered severe injuries when he fell through a gap formed by the architectural design of the building and the edge of the work platform (void).

A week before the incident, Mr Hekimian, being the safety officer of Karimbla, thought the void would create a risk to workers so he wanted hinged flaps installed. A near miss had occurred earlier as well. Mr Hekimian raised these concerns with Poletti’s supervisor and was then told to speak to Mr Poletti, the director of the company. Mr Poletti responded that the horizontal and vertical gaps complied with the Australian Standard, and he would not install hinged flaps.

Mr Hekimian wanted further measures to protect the workers, so he sought approval from Karimbla to require the workers to use harnesses attached to static lines. He obtained the approval and called an extraordinary safety meeting of contractors, where he told the representatives of the relevant subcontractors that their workers would be required to use the harnesses. Mr Poletti attended the meeting on behalf of Poletti and Mr Maric attended on behalf of MJM.

Mr Posa had not been told that he needed to wear a harness. A piece of plywood had been installed over the void. Mr Posa kicked the plywood to see if it was secure before stepping onto it to paint the column. The plywood gave way and he fell about 6 metres from Level 27 to Level 25. He suffered a head laceration, an injury to his shoulder, a fractured wrist and three fractured ribs.

SafeWork NSW charged Poletti pursuant to section 19(1) of the Work Health and Safety Act 2011 (Act) and an alternate charge pursuant to section 19(2) of the Act because it was not clear if Mr Posa was doing work for the company, as required by s19(1).

Judgment

The Court found that Mr Posa did not fall under the definition of ‘worker’ as he was not working for the company but rather worked for Karimbla, via its subcontractor MJM. Accordingly, Poletti owed a duty of care to Mr Posa under s19(2) of the Act, being a person put at risk by the work undertaken by the company.

Poletti unsuccessfully defended the matter.

The NSW District Court found the company to be in breach of section 19(2) of the Act (Category 2 offence), as it failed to:

• identify the hazard posed by the void;
• conduct and document a risk assessment in relation to any risks associated with the existence of the void;
• ensure that all voids were covered with a secure, permanent structure and/or installed with hinged flaps;
• prevent access to the work platform until the void was made safe; and
• ensure, or make arrangements to ensure on behalf of the company, that a static line was installed to enable workers to use height safety personal protective equipment.

The Court considered that these measures that should have been taken by the company were reasonably practicable because:

• the likelihood of the risk occurring was moderate to high – it was a common practice for the workers to cover the void with a piece of plywood, which created a further risk that a worker would step onto the plywood that was not intended to hold their weight;
• the degree of harm that might eventuate if a person fell through the void was significant and included a risk of death;
• the risk was obvious as the void was a large gap through which a person could fall; and
• the company knew or ought to have known about the risk from the time it was given the plans for the West Tower for the purpose of designing the system.

As a result, the District Court held that the company’s breach of duty exposed Mr Posa to a risk of death or serious injury.

Lessons

Voids are common and hazardous risks, especially in construction worksites, yet the risks can be avoided by implementing safety measures at a modest cost. Employers should always bear in mind that they can be liable not only for their own employees but for other persons who are carrying out work in connection to your business. In this case, although Mr Posa was not contracted by Poletti, the company still had a duty to Mr Posa as he was exposed to risks created by the company.

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.