CONSTRUCTION COMPANY FINED $12K IN ‘PURE RISK’ PROSECUTION

Edgepoint Homes Pty Ltd has been fined $12,000 without conviction for failing to control fall hazards during construction work on 29 townhouses in Footscray, breaching s.21(1) of the OHS Act and r.44(2) of the OHS Regulations.

In April 2022 Edgepoint Homes contracted DK Custom Homes to complete carpentry work at a specific Lot of the project. Two employees of DK Custom Homes were installing sheet flooring on the first floor, by standing on joists as they laid the flooring sheets. There were no fall controls in place such as guard railing around the perimeter, temporary platforms or mobile scaffolding.

 

At a later date a WorkSafe Inspector observed the same hazardous situation with no controls in place as workers marked chalk lines for the wall frames. To complete this activity the workers had to approach the live edge of the first floor, approximately 3m above the ground.

DK Custom Homes and another person have also been charged and were sentenced to fines of $15,000 and $12,000 respectively.

This is a great example of a ‘pure risk’ prosecution, in contrast to most of the prosecutions we see which occur after an incident resulting in injury or death. A ‘pure risk’ prosecution is initiated for a risk-based offence such as a breach of a general duty, in circumstances that have not already resulted in an incident. The general duties imposed under the OHS Act and Regulations to not require the occurrence of death, injury or illness as an element of the offence. 

In Australian WHS law, and some regulations, breach of the legislated duties that exposes workers and other people to an uncontrolled risk is enough to prompt prosecution. Unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An accused is punished according to the gravity of the breach of duty owed under the OHSA, not according to the result or consequences of the breach. From a regulatory policy perspective ‘pure risk’ prosecutions are a vital part of an enforcement strategy with an escalating hierarchy of sanctions. They are consistent with the goal of primary prevention and a reminder to employers of their duty to proactively eliminate risk, as far as reasonably practicable, before someone is harmed.

We don’t often see ‘pure risk’ prosecutions, not least because the only way WorkSafe is likely to find out about such OHS Act or Regulation breaches is if -

  • the business self-reports.
  • a worker or someone else makes a complaint to WorkSafe.
  • the workers realise the level of risk and cease work, thus leading to an inspector being notified through the issue resolution process.
  • a coincidental WorkSafe visit where the hazard is observed by or reported to the inspector on site.

Read more: Prosecution Result Summaries and Enforceable Undertakings | WorkSafe Victoria

Read an appeal decision on another pure risk case: DPP v D Buck Roofing Pty Ltd [2024] VCC 100 (15 February 2024)

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