'Foreseeable' incident brings 'impaired sexual function, psychological injury' to worker
The District Court of New South Wales recently dealt with a case involving a person conducting a business or undertaking (PCBU) who failed to ensure the health and safety of workers, exposing them to a risk of serious injury.
The case centered around the adequacy of safety measures in place to prevent falls through penetrations on a construction site.
The employer was engaged by a principal contractor to supply, install, and certify formwork at a construction site in Wollongong.
At the time of the incident, construction had progressed to the erection of the formwork floor on level 16. A sheet of unmarked plywood was covering a penetration in the deck of level 16, and below the penetration were steel-reinforced bars protruding from the concrete floor on level 15.
The tragic workplace incident
On 28 August 2019, a worker was instructed to clean up the level 16 deck. The worker lifted the plywood, intending to cut it and use it as a cover for another penetration, unaware that it was covering an existing one.
According to records, the worker fell 2.7 meters through the penetration to level 15 below, landing on the steel reinforced bars.
The worker suffered serious injuries, including wounds to the base of the penis and perineum, a transected urethra, and a left groin penetration injury.
He underwent surgery to attend to his groin injury and the insertion of a wound drain and catheter to allow for urination. The catheter remained attached for about three months.
The injuries sustained by the worker caused “ongoing impaired sexual function and psychological injury requiring medication.”
Employer’s systems of work for safety
The employer had a Safe Work Method Statement (SWMS) and a Standard Operating Procedure (SOP) that identified the risk of falls and provided that all voids were to be covered, monitored, and clearly marked.
However, these procedures were not followed on the day of the incident, as the plywood was not marked, and a daily prestart inspection of work areas was not conducted. The SafeWork Australia Guide to Formwork and SafeWork NSW Codes of Practice were also available to the employer at the time of the incident.
The court considered the objective seriousness of the offence, taking into account factors such as:
- The potential consequences of the risk
- The availability of steps to eliminate or minimise the risk, and
- The vulnerability of the workers exposed to the risk.
The court found that the offence was objectively serious, as the seriousness of the foreseeable harm to a worker was significant, and the steps available to avoid the risk were straightforward and available to the employer.
The court emphasized the importance of both specific and general deterrence in sentencing for work health and safety offences.
General deterrence was considered particularly important in the context of the construction industry, where workers are regularly exposed to high-risk work.
The court also considered mitigating factors, such as the employer's lack of prior convictions under work health and safety law and the early guilty plea, which demonstrated remorse.
Thus, the court convicted the employer and imposed a fine of $600,000, reduced by 25% to $450,000 to reflect the guilty plea.
The court also ordered the employer to pay 50% of the fine to the prosecutor and to pay the prosecutor's costs.
