In the recent decision of Inspector Barlas v C & J Carpentry & Construction Pty Ltd and Others, the importance of ensuring adequate workplace training and supervision, and the apportionment of liability between contractors and directors, were considered.
Halabi, (the Principal Contractor), had entered into a contract to construct a two storey duplex and villa. C & J Carpentry, (the Sub-contractor) were engaged to install roof and wall frames.
The Sub-contractor employed a 15 year old Apprentice Carpenter (the Apprentice) who, at the time of the incident, had approximately 4 weeks’ experience.
On the day of the incident, the first level wall frames were being erected and there were voids on the first floor due to the construction of staircases to connect the two floors. The voids were not guarded and no fall protection was in place. While carrying a metre length of timber from the ground floor to the first floor, the Apprentice walked backwards, stepped into a stairwell void, and fell about 3.5 metres onto a concrete floor below.
The Apprentice suffered serious injuries.
WorkCover NSW conducted an investigation and prosecuted the Principal Contractor, the Sub-contractor, and each of their respective Directors, under the Occupational Health and Safety Act 2000 (NSW).
The defendants all pleaded guilty.
The Court heard that at the time of the incident, the Apprentice was not using any fall protection equipment, and there was no guarding or railing around the void as it had been removed prior to the incident, so that the wall frames could be installed. None of the workers were using appropriate safety equipment near the void but were advised by the Director of the Principal Contractor to exercise caution until the hand rails were replaced.
The Court determined that:
- The absence of safety measures in relation to the void created an obvious and foreseeable risk to the safety of all persons working in the vicinity.
- The Sub-contractor failed to undertake a risk assessment in the area where the Apprentice was working.
- The Sub-contractor completed a Safe Work Method Statement (SWMS) but failed to consider falls from heights and unguarded voids. Further the SWMS was not available to employees.
- There was no effective safety system in place on the day of the incident.
- The Apprentice’s supervisor was absent from the site on the day of the incident and although there were other senior employees on site, there was no adequate alternative supervision.
The Court found that the Principal Contractor did not implement any level of supervision to ensure the workers were safe while the stairway void was exposed. Although the Director of the Principal Contractor did inspect the premises prior to work commencing, he failed to identify any hazards, and simply told the workers, as a group, to exercise caution.
Further, the Sub-contractor and it’s Director did not inspect or conduct a risk assessment of the area and type of work the Apprentice was performing. The Court noted that the Apprentice had not been given any formal safety training, he was young and inexperienced and that elevated the seriousness of the incident. Her Honour Justice Backman said:
“Mr Tarabay was inexperienced and had only been “on the job” for some four weeks. He was exposed to serious risk to his safety by reason of the failure of his employer and his supervisors to implement adequate and appropriate safety measures.”
Having regard to the remedial measures implemented by the Defendants after the incident, the assistance provided to the Apprentice and the early guilty pleas, Justice Backman fined the Principal Contractor and the Sub-contractor $90,000 each, and each of the respective Directors $9,000, plus costs.
Apportionment of Liability between the Principal and the Sub-Contractor
Justice Backman found that the level of responsibility of each of the defendants was broadly equal.
The Principal Contractor at the site had responsibilities to both employees and contractors. The Sub-contractor was the Apprentice’s employer and therefore had a more direct role with the Apprentice in terms of supervision, instruction and training. Both companies, however, breached their obligations to ensure there was a safe workplace.
Similarly, each of the Directors had an equal responsibility to ensure the safety of the Apprentice at work.
Implications of the Decision
Employers and contractors (in whatever capacity) must ensure workers are given adequate safety training not only at induction but on an ongoing basis. The duty to provide adequate training and supervision, and safe systems of work, is heightened in circumstances where the workers are young and inexperienced.
The decision also demonstrates that in circumstances where both Principal Contractors and Sub-Contractors are involved, each of the Contractors can be held equally liable, and Directors personally liable, for failure to ensure a safe system of work.