A recent decision in the District Court of New South Wales acts as a timely reminder for persons conducting businesses or undertakings (PCBUs) to actively monitor and promote the health and safety of workers at work in the PCBUs’ workplace. Importantly, this duty includes (but is not limited to) contractors and subcontractors.  

Background

SafeWork NSW v Mennen Constructions Pty Ltd [2024] NSWDC 446

Mennen Constructions Pty Ltd (Mennen), is a construction business that was engaged in January 2021 to construct a two-storey duplex.  Mennen employed a site supervisor to control and supervise the site and engaged Kim Houi Metal Works Pty Ltd (Kim Houi) to supply and install the roofing for the duplex.

In September 2021, the site supervisor asked a worker of Kim Houi, Mr Li, to return to the duplex site to complete the waterproofing of the garage roof when he had “free time”.  In this conversation, the site supervisor informed Mr Li that the scaffolding at the site was being removed.

About three days later, Mr Li attended the site with another worker to waterproof the roof, which was approximately 3.4 metres above ground level.  Mr Li and the other worker commenced the works without speaking to anyone. 

While on the roof, Mr Li stepped on an unsecured surface and lost his balance.  Mr Li fell off the roof and landed on the concrete driveway of the neighbouring property. 

Mr Li suffered a traumatic brain injury, a temporal fracture, a skull and inferolateral orbital wall and lateral maxillary sinus fracture and multiple spinal and chest fractures.  Mr Li was hospitalised between 6 September 2021 and 24 October 2021. As of 28 November 2023, Mr Li had not returned to work and still experienced significant memory loss.

Applicable Legislation

In response to the incident, Mennen pleaded guilty to an offence under section 32 of the Work Health and Safety Act 2011 (NSW) (NSW WHS Act) for a failure to comply with section 19(1) of the NSW WHS Act.  This section 19(1) is identical to section 19(1) of the Work Health and Safety Act 2020 (WA) (WHS Act), which states:

(1)           A person conducting a business or undertaking must ensure, so far

     as is reasonably practicable, the health and safety of:

   (a)           workers engaged, or caused to be engaged by the person; and

   (b)           workers whose activities in carrying out work are influenced or

                  directed by the person,

   while the workers are at work in the business or undertaking.

Importantly, the meaning of ‘worker’ in the WHS Act covers a person who carries out work in any capacity for a PCBU, including work as a contractor or subcontractor (our emphasis).

Decision

In delivering its sentence, the Court observed that:

• Kim Houi provided Mennen with a Safe Work Method Statement (SWMS) which listed working at heights as a possible hazard and identified a ‘safety rail’ and ‘harness’ as controls.  However, scaffolding was removed at the site one week prior to the incident – which meant no fall protection system was in place or provided by Mennen.
   
• Prior to Mr Li conducting works on the roof, Mennen did not undertake a risk assessment or Job Safety Analysis, or communicate the scope of works to Mr Li.  Whilst Mennen conducted semi-regular toolbox talks in English, this was of little utility to Mr Li, as he spoke basic English.
   
• Most importantly, Mennen did not provide adequate supervision to Kim Houi workers – despite the sole director of Mennen and the site supervisor both observing Mr Li using a ladder to access the roof, neither intervened nor adequately supervised the works being conducted.

The Court considered the sole director’s expression of regret (on behalf of Mennen), the lack of any prior convictions or SafeWork NSW investigations involving Mennen and Mennen’s good prospects of rehabilitation as mitigating factors.

However, the Court noted the objective seriousness of the incident – the risk of fall was obvious and known to Mennen, the risk was likely if precautions were not taken, the steps to eliminate the risk were simple and not-inconvenient, Mr Li conducted the works without following the SWMS, and the risk included a risk of death.  The Court also observed the need for general and specific deterrence and held that the injuries sustained by Mr Li were sufficient to establish an aggravating factor to the offence.

The Court said that Mennen’s failure to comply with its health and safety duty exposed an individual to a risk of death or serious injury or illness which, as a Category 2 offence, attracted a maximum penalty of $1,782,579.  From this, the Court fined Mennen $180,000, with a 25% reduction from $240,000 to reflect a discount for Mennen’s guilty plea.  Mennen was also ordered to pay the prosecutor’s costs.

Lavan’s comments:

Whilst this case was heard in New South Wales, due to the identical wording of section 19 across the NSW WHS Act and the WHS Act, this decision has full application to PCBUs in Western Australia.  Significantly, a PCBU’s primary duty of care is owed to ‘workers’ - which is a broader category than ‘employees’.  Lavan recommends that PCBUs prioritise safe systems of work and ensure that these systems are followed by all workers on site.  If you would like assistance in this area, please do not hesitate to contact Lavan’s Employment, Safety and Education team.

Thank you to Rebecca French, Solicitor, for her valuable research and assistance with this article.