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Fatal fall through gap in scaffold

The construction company was convicted and fined $90,000.
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Fatal fall through gap in scaffold

Fatal fall through gap in scaffold

17 December 2020

By Gaby Grammeno

When a plank was not properly secured on the scaffolding surrounding a building under construction, a renderer fell through the gap and later died from severe head injuries. As the principal contractor responsible for safety on the site, the construction company was convicted and fined $90,000, though the worker who died was a subcontractor, not its own employee.

The incident

The principal contractor was undertaking the construction of a six-storey residential apartment block of 29 flats and a basement car park in a Sydney suburb. As the principal contractor, the construction company had management and control of the site and was ultimately responsible for ensuring the safety of workers at the site.

The principal contractor engaged a subcontractor as the site manager. He was responsible for implementing the company’s WHS system. He was required to undertake safety inspections, ensure that trade workers used safe work practices, and that trade workers were complying with Safe Work Method Statements (SWMS) and instructions.

Other subcontractors were also involved in the construction, providing services in relation to scaffolding, painting and rendering.

The subcontractor undertaking the painting and rendering engaged another subcontractor to assist with the rendering work at the site. It was that subcontractor (the renderer) who subsequently fell to his death.

On the day of the incident, the renderer was working on the scaffolding on Level 4 of the building when he fell through or from Level 4 to Level 3, hitting his head against the concrete balcony of a unit on Level 3.  

He was taken to hospital where he underwent emergency surgery, but soon found to be brain-dead and placed on life support, where he died the following day of severe traumatic brain injury.

The investigation found missing, loose or inadequately secured planks on both Levels 3 and 4 of the scaffold, raising the risk of a fall. It was also clear that unauthorised alterations had been made to the scaffolding.

The company was charged with failing to comply with its health and safety duty and exposing workers to a risk of death or serious injury. The offence carries a maximum penalty of $1.5 million.

In court

The District Court of New South Wales heard that before the incident, the director had made repeated efforts to ensure site safety through toolbox talks, procedures to be followed if changes were required to the scaffolding, insistence that workers comply with safety instructions, inspections of the scaffolding and certification of its compliance with requirements, as set out in the many sources of information and detailed guidance on safe scaffolding that were readily available from the regulator and elsewhere.

However, there was no evidence that workers had been properly inducted, instructed or trained or that safe work procedures were adequately implemented or enforced.

The court also heard evidence of the measures taken to ensure safety after the incident. Among other things, the director of the construction company had instructed the scaffolding subcontractor to rectify issues with the scaffolding, installed signage that the scaffolding was not to be altered, trained workers in the importance of not altering the scaffolding, and engaged an external safety consultant to monitor compliance and enforce safety procedures.

In deciding on the magnitude of the fine, the judge took into account the seriousness of the offence, as well as the mitigating factors, namely that the construction company had no previous convictions, it entered a guilty plea at an early stage, cooperated with the regulator in its investigation, and was a good corporate citizen, having provided significant support to charitable activities.

Moreover, the company director had not only expressed contrition and remorse, he had required significant psychiatric and psychological treatment and support to deal with his sorrow about the worker’s death. While not specified as a mitigating factor in the legislation, the judge said it called for some leniency, as it indicated that the company is not likely to reoffend.

The company was convicted and fined $90,000 after a reduction of 25% to reflect the early guilty plea, plus the prosecutor’s costs.

The bottom line: Unauthorised alterations to scaffolding and inadequately implemented safety procedures can result in death.

Read the judgment

SafeWork NSW v Hadcon Constructions Pty Ltd [2020] NSWDC 316

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