Contractor fined $450K for failing to manage ‘glaringly obvious’ fall risk

By Portner Press on July 23rd, 2019
  1. Work Health & Safety Act
  2. Workplace health & safety regulations

A principal contractor has been convicted and fined $450,000 for failing to manage a “glaringly obvious” fall risk at a construction site, which led to a worker’s death.

NSW District Court Judge Wendy Strathdee found Sitao (Tom) Zhang, director of Truslan Constructions Pty Ltd, had given “scant regard” to a notice issued by a Construction, Forestry, Mining and Energy Union (CFMEU) officer 11 days before the fatal incident.

The notice should have triggered an urgent inspection and risk assessment of the construction site, but no steps were taken to eliminate or minimise the risk, Judge Strathdee found.

The worker killed was a subcontractor for another company, Sapform. He had been engaged to carry out formwork carpentry at the six-storey building. As he was laying plywood on the second floor of the site, he fell through a gap between the edge of the deck and the scaffold, landing on a protruding metal starter bar on the floor more than three metres below.

There were no handrails or catch decks protecting any of the gaps.

Judge Strathdee said there was an abundance of guidance material that was readily available to Sapform and Truslan Constructions to manage the risk of such a fall, which neither of the companies put to use.

Mr Zhang submitted that Sapform and its subcontractors had created the fall risk and could have protected themselves from it. However, Judge Strathdee stressed that as a principal contractor he was culpable for the worker’s death.

“Mr Zhang’s evidence, to my mind was not the evidence of a concerned director of a company who employed and contracted labour, but of someone who had little regard for his work, health and safety obligations, such that he was prepared to hand the task to someone else, rather than take steps personally to ensure the safety of his workers,” Judge Strathdee said.

“I find it most concerning that 11 days prior to the tragic events that ended Mr Da Silva’s life, the CFMEU had attended the building site and issued notices which specifically identified risks of workers falling from height, and Mr Zhang relied on others to address those issues and made no independent checks to ensure that appropriate measures were taken.

“This to my mind shows a blatant disregard for the safety of workers, as he did precious little to eliminate or at least minimise the risks to workers, such as Mr Da Silva.

“Having done so little, workers, including Mr Da Silva were exposed to a risk of falling from heights on the site. Tragically the risk came home with regard to Mr Da Silva.

“The risk was also obvious, glaringly so. There were no guard rails or edge protection, and the work was being performed at height. It seems impossible to me, that even a perfunctory inspection and risk assessment would not have revealed this risk.

“The CFMEU having attended the site, issued notices which included the risks to workers of falling whilst working at height.

“Mr Zhang gave this notice scant regard, and relied almost exclusively on others to address the issues. He also to my mind, wished to deflect his own responsibilities and pass them onto Sapform. These duties are non-delegable, and his approach shows a very cavalier attitude to the risks to which his workers were exposed,” she said.

Truslan Constructions was fined $600,000 out of a maximum penalty of $1,500,000.

This was reduced by 25 per cent to $450,000, plus $32,500 costs, for an early guilty plea.

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