In the case of Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm 22 the NSW Industrial Court has held that a head contractor breached the Occupational Health and Safety Act 2000 (NSW) (the Act) by, among other things, failing to warn persons at the place of work of risks to their safety. In a subsequent case to determine GRD Minproc Limited’s (GRD) penalty, the Court fined GRD $90,000.

Facts

On 30 January 2004, GRD, as head contractor, entered into a contract with a subcontractor, Axis Metal Roofing Pty Ltd (Axis), to install and erect wall and roof cladding at a Waste Management Centre in Eastern Creek.

During execution of the works, on 12 July 2004 a 16 year old apprentice (Sadik) employed by Axis was assisting another employee of Axis in moving roof cladding within Fan Room No. 1. This room was on the ground floor of the site with an underground room below referred to as the plenum. On the floor of the Fan Room were numerous mesh covered penetrations into the plenum.

The penetrations in the Fan Room floor were originally covered with plywood. Following a safety inspection by the Site Safety Committee, the coverings were changed to 200mmx200mm mesh. A further inspection resulted in a smaller mesh size of 100mmx100mm being used. All the covers were secured by reinforced steel bars and double ties.

While moving the roof cladding sheets across the Fan Room floor, a mesh covering over one of the penetrations was dislodged, causing Sadik to lose his balance and fall through the penetration to the concrete floor in the plenum below. Falling 4.4 metres, Sadik suffered a broken left arm and medium nerve damage, requiring 2 months off work.

Consideration of the issues

The issues for the NSW Industrial Court were:

• Had GRD breached section 8(2) of the Act? Sub-issues that flowed from this included:

Relevant sections of the Act

• Section 8(2) states that “an employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.”
• The defence found in section 28(a) states that “it is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that it was not reasonably practicable for the person to comply with the provision…”

Breach of section 8(2) of the Act

When determining whether there was a breach of section 8(2) by a defendant, it was held that the correct question to be asked by the Court is not whether there is a causal nexus between the actual accident and the defendant’s conduct, but instead, “given [the] known risk to safety, was there a causal nexus between the identified risk and the alleged acts or omissions of [GRD]?”

In the circumstances of this case, this question required the Court to examine the risks and conduct of GRD to determine whether there was any breach of the Act.

Failure to warn of the risk

In its submissions to the Court, GRD claimed that as there was a safe system of work existing at the site, there was no duty or obligation to warn employees about what, in GRD’s opinion, was a ‘non-existent risk’. This was because there was no evidence of the covers being (or standing a chance of becoming) insecure.

Justice Kavanagh rejected this submission, noting that the obligation to warn of a known hazard did not arise only where GRD knew the penetrations were not properly secure. Instead, employers have a duty under the Act to warn employees of any ongoing risk.

In addition, although her Honour accepted that GRD has a comprehensive safe work system in place at the Site and had placed numerous obligations on all subcontractors to comply with such plans, Justice Kavanagh noted that in any assessment as the liability of a defendant alleged to have breached the Act, none of GRD’s obligations could have been passed to its subcontractors on Site or even the members of the Site Safety Committee (comprised of members from each of the major subcontractors).

Were the penetrations properly secured?

During the course of evidence, an expert on behalf of GRD, Dr Casey, gave evidence regarding the coverings over the penetrations in the Fan Room floor. Although noting that the mesh coverings would withstand 185 kg of lateral load and one tonne of load, Dr Casey conceded that these results would be found in an ‘ideal situation’ where the mesh was properly secured and all ties correctly installed.

However, he admitted there were a number of variables which, if present, would result in the mesh not being properly secured and provide a risk that someone could fall through the penetrations. Such variables included how firmly the security bars were attached to the mesh and whether the ties that held the mesh down were cut or left intact.

As a result of Dr Casey’s evidence, Justice Kavanagh held that the risk of falling through one of the penetrations in the Fan Room floor was neither impossible to anticipate nor entirely speculative. It was a known risk which could occur if any of the variables raised by Dr Casey occurred to the ‘ideal situation’, with the result that the mesh would move and someone could fall through. In other words, GRD had an absolute obligation to ensure that its workplace was safe and that the mesh coverings over the penetrations were properly secured. In that regard, her Honour held that GRD had failed in its duty.

Importantly, Justice Kavanagh also noted that it was not necessary for the Court to determine which of the various possibilities or variables actually caused the mesh to move off the penetration at the time of the accident.

Inspections

It was not disputed that numerous inspections of the mesh coverings were conducted by individuals such as the Safety Officer, Construction Manager and even members of the Site Safety Committee itself. However, despite these inspections, GRD was still held to have failed to properly (and appropriately) inspect the mesh coverings in order to identify whether there was any ongoing risk to health and safety.

In reaching this conclusion, her Honour noted that the inspections were merely visual inspections (with individuals kicking and standing on the mesh coverings). It was held that such an inspection could not identify whether the ties were cut or any security bars were hanging loose. In addition the number of inspections themselves provided no defence as they should have provided more opportunity for GRD to recognise (and fix) any defects in the safety system incorporating the mesh coverings.

Defence

In response to the finding that GRD had breached section 8(2) of the Act, GRD attempted to utilise the defence in section 28(a). This defence requires the Court to perform a balancing act where the likelihood and gravity of the risk to safety is weighed against the cost, difficulty and trouble necessary to avert the risk. Accordingly, if the risk of Sadik’s fall was not reasonably foreseeable, it is likely that the Court would hold that it was not reasonably practicable to guard against such occurrence.

Noting Dr Casey’s evidence about the effect on variables on the mesh coverings, the Court held that the mesh coverings were not properly secured on the day of Sadik’s accident. Combined with the failure of GRD to warn employees of its subcontractors of the risk, it was foreseeable that a fall could occur in these circumstances. However, her Honour did note that the failure to adequately inspect the penetrations did not affect the level of foreseeability of the incident occurring.

Determining the incident was reasonably foreseeable, her Honour then weighed up the costs and difficultly against the likelihood and gravity of the risk occurring. Noting that after the accident, GRD had arranged to weld the mesh coverings to the penetrations, her Honour held that this was a low cost and easy method to reduce the risk of someone falling through the penetrations, such that GRD could not maintain this defence.

Effects

As a result of the above decision, employers (and principal contractors) should be mindful to put all their employees and non-employees present on any works site on notice about known risks to health and safety where such risks are ongoing and it cannot be conclusively held that such a risk has been 100% extinguished.