The Risk Assessment that could have stopped a six metre fall, $300,000 penalty and a conviction
At that time, the painter was using a work platform that was hanging from a jumpform screen. The building was designed with an edge framework that stops the staff from falling. The painter dropped through a gap between the building and the work platform (the void). The space was 800mm by 500mm. For Australia, the acceptable size is just 225mm. The contractor employed was not the main contractor.
On 22 February 2016, a painter fell of the roof of a multistorey building under construction in Sydney's Parramatta district, after attempting to paint the exterior of the building from the 27th floor.
At the time, the painter was working from a work platform which was attached to a jumpform screen. The jumpform screen system provided edge protection for workers engaged in the construction of the building. The painter fell through a gap between the edge of the building and the work platform (the void). The space was 800 mm by 500 mm. For Australia, the Appropriate Size Void is just 225mm. The principal contractor at the site had outsourced its installation to Poletti Corporation Pty Ltd (Poletti).
SafeWork successfully alleged that Poletti had a lack of adequate risk management where the void existed. This failure was among a group of proven safety breaches. This was supported on appeal to the NSW Court of Criminal Appeal.
The painful truth
The subcontractor agreement required Poletti to adequately prepare design drawings for the subcontracted works, provide certification that they were fit for the purpose for which they were intended to be used, and to recognise his overall influence over the output of the subcontracted works. Poletti agreed to supply the jumpform system and make sure there would be no gaps found in the outside decking that would allow for a person to fall any higher than a storey.
On the day of the incident, the painter who was working for another company stepped on a sheet of plywood that had been positioned over a gap, after it had been placed there by the renderers to catch any falling render. When the employee stepped on the plank of wood, it gave way under his weight and he dropped six metres to the screens below, causing severe injuries. As a matter of safety procedure, when the screen system was raised, all personnel would evacuate from the screens, except those participating in the jump process. When the jump was performed Poletti's representative would walk around and check the bottom of the finishing screens to insure there were no gaps. The representative did not inspect the top tiers of the jumpform screens which covered the four levels above. Poletti's representative then would notify the principal contractor that the jump was finished and that the rest of the trades could carry on working on the platforms around the outside of the building.
Poletti was charged by SafeWork as a Responsible Person Conducting a Business or Undertaking (PCBU) for failing to take practicable steps to make sure that persons were not put at risk from the work carried out originating from the conduct of Poletti's contract for services.
The prosecution claimed that Poletti could have chosen to take the appropriate measures of:
conducting a risk assessment in relation to any hazards related to the passage between platforms used in construction and the exterior framework of the building.
make sure that all gaps between both the work platforms of the formwork screen and the outside structure of the building greater than 225 mm had been fitted with a secure permanent installation and/or hinged flaps;
make sure that all persons conducting finishing trades not be permitted to access the work platform until the gaps were made safe; and
make sure that a static line was installed on the work platform that allows personnel to use height safety protective equipment such as fall restraint or arrest equipment while near the work platform.
Poletti was found guilty before the District Court of NSW. In December 2019 Poletti was convicted and fined $300,000 and ordered to pay the costs of the prosecution. Poletti filed an appeal to the NSW Court of Criminal Appeal in which, on 25 September 2020, the court held, in dismissing the appeal, that the prosecutor had proved not only were the measures able to be carried out by Poletti as asserted by the prosecutor, but that each measure was reasonably practicable to control the risk as asserted in the summons.
The court acknowledged the remedy of risk assessment of Poletti as appropriate. The cost of the estimation of the risk was not disproportionate to the risk.
Elimination or minimisation control measures
The Work Health and Safety Act of NSW allows employers to make sure that workplaces are safe and to minimise the risks to workers and as far as possible.
The District and NSW Court of Criminal Appeal maintained that the process of conducting a risk assessment was a way to reduce the likelihood. The Courts also determined that restricting workers access to the work platforms and eliminating large gaps may have avoided the incident. The precautionary measures had been reasonably practicable for Poletti to undertake.
The NSW Court of Criminal Appeal has identified that an acceptable action to take at any workplace is a risk assessment to assess the risks related to the work activity.
Any failure to perform a risk assessment, could be used, in tragic events, to commence industrial manslaughter proceedings.
In June 2020, the NSW Government connected the WHS Act to the offence of Manslaughter in the NSW Crimes Act. Within the WHS Act, it also introduced offences of Gross Negligence and of holding insurance for WHS fines.In Victoria, in July 2020, the new offences of Industrial Manslaughter commenced. In Queensland, in 2017, the WHS Act of QLD was amended to incorporate Industrial Manslaughter offences. The Mining Safety Laws in Queensland have also been amended in early 2020 to include the identical offences. In Western Australia, consistent With national Laws, that include Industrial Manslaughter offences, have been enacted by parliament and are soon to be fully operational.
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