WHS fatality prosecution against an officer - 'reasonably practicable'?
McMurdo JA and Mullins and Davis J
FACTS
On 6 February 2019, the Appellant an officer of Multi-Run Roofing Pty Ltd (the company) was found guilty of failing to exercise due diligence duties to ensure that the company, complied with a primary duty of care provisions under the Work Health and Safety Act 2011 (the Act). As a result, the workers of the company were exposed to a risk of death or serious injury or illness. The Appellant was convicted of one count of a breach under Section 31 of the Act [4] for the death of a worker.
To protect workers, the company’s quote for the work, included ‘supplying and installing of safety rail’ on the roof to prevent falls. However, despite the terms, no safety rail was installed. The company instead used harnesses which were attached to ropes secured to both the ground and fixing points on the roof. The company also positioned scissor lifts as a barrier at the edge of the roof – a mobile platform that can be raised to various heights. [9] – [13]
However, it was not contemplated by the company that all workers on the factory roof would use harnesses all the time, especially those working away from the edge since it was perceived they were not in danger of falling off the roof. Rather, the plan was for the scissor lifts to be positioned where the workers were working, so that the rails on the lifts operated as a barrier preventing a fall. As the workers progressed, the scissor lifts would be moved along the edge. The scissor lifts, along with the workers using harnesses, would anticipatorily prevent falls from the roof. [14] – [15]
The Appellant was prosecuted in response to a fatal accident occurring at the worksite at Lake Macdonald on the Sunshine Coast on 29 July 2014. One of the employees employed by the company tripped in the cutter and fell off the roof, without a harness and there was no rail. The scissor lift was not positioned at the edge of the roof adjacent to where he fell. In this fall of almost six metres, the employee suffered fatal injuries and died shortly after the accident. Later evidence revealed that the ground where the employee fell had no scissor lift since the ground was uneven, making instalment difficult [8] – [18]
The Appellant was charged with offences under section 31. The Appellant lodged an appeal against the conviction and sentence of twelve-month imprisonment to be suspended after serving four months. [5], [18]
David Cormack – Brisbane Barrister & Mediator