Tragic fall costs employer $165K
Posted on February 25, 2016
The first batch of penalties handed down under the harmonised WHS legislation have sent a clear message to employers: expect hefty penalties for neglecting your safety obligations.
In Safe Work New South Wales v Austral Hydroponics P/L & Anor [2015] NSWDC 295, Austral Hydroponics Pty Ltd (Company) conducted a business growing greenhouse truss tomatoes. Eang Lam, the sole director, supervised the Company's five employees, including Saveoun Nuon who worked as a farmhand.
On 7 March 2013, Mr Nuon was directed by Mr Lam to remove some plastic sheets from the roof of a hot house, however no specific instructions were provided to Mr Nuon as to how to complete this task. The roof of the structure was curved, with a low point of 2.5m and a high point of 4m. Mr Nuon used a ladder to climb onto the roof and stood on the gutter to remove the plastic sheets. As Mr Nuon attempted to pull one of the plastic sheets, he lost his balance and fell 2.5 metres backwards onto the ground. Mr Nuon sustained a fracture to the spine, causing damage to his spinal cord and tetraplegia. He remained in hospital requiring high care, until he passed away in August 2014 due to respiratory failure and recurrent aspiration pneumonia.
Safe Work New South Wales (Safe Work) prosecuted the Company under section 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act), alleging that the Company failed to comply with a health and safety duty which exposed Mr Nuon to a risk of death or serious injury. In particular, the Company:
- Did not comply with Safe Work Australia's Code of Practice entitled “Managing the Risk of Falls at Workplaces”;
- Had not conducted a risk assessment in respect of the task carried out by Mr Nuon;
- Had no safe work procedure in place in respect of the task carried out by Mr Nuon;
- Did not implement training or control measures in respect of the task carried out by Mr Nuon; and
- Did not provide Mr Nuon with the appropriate equipment to perform the task.
Further, it was alleged that Mr Lam failed to exercise due diligence to ensure that the Company complied with its duty, exposing Mr Nuon to a risk of death or serious injury. It is important to note that the prosecution did not allege that Mr Nuon’s death was caused by the injuries he sustained in the fall; the charges related only to the injuries sustained.
The parties pleaded guilty to the offences and the matter proceeded to sentencing submissions. The Court acknowledged that the defendants had no prior convictions, were persons of good character, unlikely to re-offend, remorseful, entered a guilty plea at the earliest opportunity, cooperated with the investigation and had limited capacity to pay.
Against this, the Court had regard to the objective seriousness of the offence, the substantial injury/emotional harm caused by the offence and the need to provide general deterrence. As to the matter of deterrence, Judge Scotting reasoned that “The penalty should draw attention to persons operating similar businesses which are inherently dangerous to employees that it is necessary to ensure that they operate without avoidable risk to the health and safety of their employees.”
In the end, the Court ordered the Company to pay a fine of $150,000 (after a discount of 25% for the early guilty plea), as well as imposing a fine of $15,000 for Mr Lam personally (who also received a 25% discount).
In order to minimise the chance of a penalty – or more importantly, death or serious injury – employers must undertake regular risk/hazard assessments and adopt appropriate measures to eliminate or reduce the risk of injury for employees and others in the workplace. If a Court concludes that there were reasonable measures which could have been taken to achieve a safe work environment, and that no such measures were taken or the measures were insufficient, the lesson will be an expensive one for employers.
Please contact a member of Lynch Meyer’s Workplace Relations team if you require assistance with a WHS matter.
