By Gaby Grammeno Contributor

The builder was a small business taking on residential and commercial renovations and new builds. It usually had two projects in train at any one time, and the sole director acted as site manager several days a week on each project.

In January 2021 the builder was engaged as the principal contractor for the construction of a new two-storey duplex in a Sydney suburb. For roofing works, the builder engaged a subcontractor with two workers to carry out tasks relating to roofing, fascia and guttering.

In September 2021 the site supervisor phoned one of the subcontractor’s workers and told him he could return to the site to complete the waterproofing of the garage roof. 

Scaffolding had been in place at the rear of the site, but it was removed. The site supervisor did not discuss how the work was to be completed but relied on the worker’s experience to determine how it would be done.

On 6 September, the worker was carrying out a task on the roofing of the garage, using an A-frame ladder, about 3.4 metres above ground level, when he put his foot on the fascia. It moved under his weight, making him lose his balance. He fell off the roof and over a dividing fence, landing on the concrete driveway of the neighbouring property.

As a result of the fall, he suffered a traumatic brain injury, with multiple fractures of his skull, spine and chest as well as haemorrhages. He was in hospital for seven weeks then transferred to the brain injury unit at a rehabilitation facility. Two years later he was still unable to return to work and had significant memory loss.

The builder was charged with failing to ensure workers’ health and safety and exposing a worker to a risk of death or serious injury. The maximum penalty for this offence under s 32 of the Work Health and Safety Act 2011 is $1,782,579.

The case was heard in the District Court of New South Wales.

In court

The court heard that safety systems before the incident were seriously deficient, despite the existence of a Safe Work Method Statement mentioning ‘safety rail, harness’ as measures to minimise the risk of falls. 

The builder did not require compliance with the SWMS on site and did not undertake a risk assessment or Job Safety Analysis identifying hazards and control measures. 

There was no fall protection for work on the garage roof, no guardrails, temporary scaffolding or temporary edge protection. The builder did not check if the subcontractor was providing and using its own such equipment.

Though semi-regular toolbox talks were conducted, the builder did not direct the subcontractor to stop work due to the lack of fall protection, and did not provide adequate supervision to the subcontractor’s workers when they were working on the garage roof. Nor had the builder spoken with the workers about the scope of the work or when it was to be completed.

After the fall, the builder installed handrails and temporary scaffolding around the site where there were risks of falls from heights, including the garage roof, and increased the frequency of toolbox talks.

The builder accepted responsibility for the failures that led to the incident and pleaded guilty to breaching s 32 of the Work Health and Safety Act. 

The risks of a fall were obvious and well-known to the builder. He should have taken steps to prevent the accident and he should have adequately supervised the work and ensured that it was performed in compliance with the SWMS provided by the subcontractor.

In sentencing the builder, Judge Andrew Scotting considered the seriousness of the offence, the need for deterrence, aggravating and mitigating factors as well as the builder’s capacity to pay a fine.

He took into account the fact that the builder had no previous convictions, cooperated with law enforcement authorities, showed remorse for the accident and had taken steps to improve the safety of its operation, particularly with regard for the risks of working at heights. 

He ruled that under the circumstances, the appropriate penalty was a fine of $240,000, which was reduced by 25% to reflect the discount for the guilty plea. 

The builder was convicted and fined $180,000 plus costs.

What it means for employers

Working at heights is notorious for the ongoing toll of disastrous consequences including brain injuries, destruction of the capacity to work and the psychological impact of catastrophic disruption of a person’s life, including the effect on their families. Appropriate safety systems are an absolute must for any business with people working on roofs or otherwise at heights. Employers and principal contractors need to check that contractors are using safe work methods, and stop work if they’re not.

Read the decision

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