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NSW: PCBUs and director failed in joint WHS duty, fined $620k

A PCBU claiming it wasn't contractually obligated to implement safety measures that could have prevented a fatality has been fined $500,000 for category 2 WHS breaches. A second PCBU and the director of a third PCBU were also fined for breaches relating to the death.

NSW District Court Judge Andrew Scotting found NSW Bricklaying Pty Ltd breached the State WHS Act in exposing "other persons" to the risk of being crushed or struck by debris from a 6.5-metre-high wall that collapsed in high winds at a Carlingford construction site. 

The head contractor of the two-storey duplex development site was Effective Building and Construction Pty Ltd (EBC). EBC hired WZY Development Pty Ltd and WZY's director Jianen Wang to manage activities at the site, and Wang engaged NSW Bricklaying to build the high brick wall to divide the duplexes.

On 16 August 2017, the wall collapsed in strong westerly winds, falling onto and trapping two construction workers, killing one of them. The second worker suffered facial scratches and was treated for shock. Later that day, in light of the fatality and an incident elsewhere in Sydney where a worker was seriously injured, SafeWorkNSW issued a wind warning.

After an investigation, the regulator later found the Carlingford wall was inadequately supported at the bottom and wholly unsupported at the top, and charged NSW Bricklaying, EBC and Wang under the WHS Act

Both EBC and Wang pleaded guilty to the breaches they were charged with. However, NSW Bricklaying pleaded not guilty, arguing it didn't have a duty to eliminate the risk of the wall collapsing because it didn't quote to brace the wall and this was not within the scope of its works at the site. It claimed WZY was responsible for ensuring the wall was braced once it was erected. 

But Judge Scotting found, in May, that principal and masonry contractors were jointly responsible for risk assessing and identifying walls that might need temporary support. NSW Bricklaying's contract did not extend to temporarily supporting the wall, but it was legally obligated to conduct its own risk assessment to determine whether it needed temporary support, and could have created an exclusion zone around the wall until support was arranged and installed, the Judge found.

NSW Bricklaying was subsequently convicted and fined $500,000, while EBC and Wang were convicted and fined $60,000 each after 25 per cent discounts for their guilty pleas.

After they were sentenced, SafeWork investigation and enforcement executive director Valerie Griswold said all three parties "failed to apply appropriate risk management and safety measures, ultimately failing in their duty to protect workers". She called for workers working unsupervised on dangerous building sites to cease work and report issues to SafeWork by phoning 13 10 50 or through the Speak Up, Save Lives app.
Source: OHSAlert

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