On 6 February 2019, Mr Gary Lavin and his company, Multi-Run Roofing were found guilty of Category 1 reckless conduct under s31 of the Work Health and Safety Act 2011 (the Act). Mr Lavin was sentenced in the Maroochydore District Court to one year imprisonment, suspended after 4 months, while the company was fined $1 million, to be paid within 6 months. The case marks the first Category 1 prosecution under the Act.

What Happened?

Multi-Run Roofing had been sub-contracted to re-roof a number of large sheds. Relevantly, Multi-Run Roofing was to be paid for the installation of edge protection, and there was even un-installed edge protection available on-site (although it could not be established how much) when the incident occurred. Despite the ease with which edge protection could have been installed, Multi-Run Roofing elected not to, with Mr Lavin allegedly having stated to other workers that it would be “too expensive” to do so.

An alternative work method was adopted by the workers, whereby the rails of scissor lifts were positioned as a makeshift barrier. One worker would then be positioned near the edge of the roof to straighten the sheets of roofing material, ideally with a harness.

Mr Whareheepa Te Amo was one of the five workers engaged to carry out that work. On the day of his death, Mr Te Amo was straightening roofing sheets near the edge of the roof. No edge protection was present and Mr Te Amo was not wearing any other safety equipment (such as a harness). He lost his footing and fell almost 6 metres to his death.

The Decision

The Court found that:

  1. The risk of death or injury arising from a fall on-site was significant, and that while the workers engaged were all competent, they ‘were working within a narrow margin of error’, compounded by the fact that the nature of the work was repetitive.
  2. Had edge protection been installed, then it would have prevented the fall and resultant death.
  3. Multi-Run Roofing could easily have remedied the lack of edge protection, given that the materials were already on site and it was agreed that the company would be paid for installation.

Considerations and Take Away Points

An individual can be liable for up to 5 years imprisonment for committing an offence of ‘reckless conduct – Category 1’ under the Act, while companies can be liable for up to 30,000 penalty units (currently in excess of $4 million). The defendants’ actions were found to be not at the highest end of possible offending for reckless conduct.

None of the defendants (Mr Lavin, Multi-Run Roofing and the principal contractor) had any prior relevant work health and safety breaches, yet Mr Lavin and Multi-Run Roofing still received harsh penalties for the decision not to take safety precautions which were well within the company’s means to implement.

This decision is a significant development for Queensland employers, in that it is the first time a Queensland employer has been sentenced to imprisonment (not wholly suspended) for breach of the Act. This decision follows on from a Victorian decision earlier in 2019 where the self employed owner of a scrap metal business was sentenced to 6 months imprisonment after pleading guilty to two charges under the Occupational Health and Safety Act 2004 (Vic).

The message from these decisions is clear – where employers have previously received suspended custodial sentences for breach of their duty under the Act (or respective legislation), the Court is now taking steps to ensure that penalties are increasing and harsher punishments are implemented for both individuals and companies. Employers need to actively consider potential safety issues and ensure that appropriate precautions are implemented where possible.

Further information about the case can be found here.