A wake-up call for all PCBUs – why workplace safety is important
Perth Builder CASM Construction Pty Ltd and its director have been fined $750,000 and $45,000, respectively, by the Northam Magistrate’s Court after a worker on a residential construction site fell onto an unprotected and unfilled concrete swimming pool.
The company was found to have failed to ensure its workers were not exposed to hazards, which resulted in serious harm to a worker.
The director of CASM Construction, Shane Lynn, also plead guilty to neglect as a director and was granted a spent conviction.
The incident
The incident occurred on December 14, 2021, in Wootatting, 65 kilometres east of Perth. The worker, carpenter Terry Dunn, was working on the residential building site when he fell from a height of 2.2 metres, hitting the concrete floor of an empty swimming pool.
As a result of the fall, Dunn suffered injuries including a fractured skull, brain bleeding, broken ribs, a punctured lung, a broken shoulder and serious ongoing neurological complications, including regular seizures and cognitive impairment.
The Magistrate noted how some risks could have been mitigated in order to protect Dunn, including:
- installation of adequate scaffolding;
- edge protection around the edge of the empty pool; and
- closing and locking the bifold doors which lead to the hazard.
Primary duty of care for Persons Conducting a Business or Undertaking
An investigation by WorkSafe WA following the incident found that both the company and its director failed in its primary duty of care.
The case highlights the primary duty of care to ensure the health and safety of workers while they are at work is carried by the Person Conducting a Business or Undertaking (PCBU). This primary duty of care owed by PCBU’s requires provision and maintenance of the following:
- a working environment that is safe with minimal risk to health and safety, including safe access to and exit from the workplace;
- plant, structure and systems of work that are safe and do not pose health risks;
- the safe use, handling, storage and transport of plant, structure and substances such as toxic chemicals, dusts and fibres;
- adequate facilities for the welfare of workers at work;
- information, instruction, training and supervision to workers needed for them to work without risks to their health and safety and that of others around them;
- the health of workers and the conditions of the workplace are monitored to prevent injury or illness arising out of the conduct of the PCBU; and
- any accommodation owned or under their management and control to ensure the health and safety of workers occupying the premises.
As far as reasonably practicable, PCBU’s must eliminate all risks to the health and safety of workers, not only on site, but any location where workers are present as a result of the PCBU’s instruction or direction.
Whilst Lynn, who is now bankrupt, showed deep remorse, the Magistrate emphasised his primary duty of care as a PCBU and how a failure of this duty resulted in Dunn’s life being forever changed. CASM Construction is now in liquidation.
The findings and penalties issued in this case highlight the primary duty of care of a PCBU to its workers is required at all times.
Key takeaways
This case should serve as a reminder to every PCBU that it is their legal responsibility to ensure the safety of employees in an organisation as well as contractors.
This case highlights the devastating consequences that can arise when safety systems fail or are neglected. The repercussions are not limited to financial penalties or reputational damage; they can be life-altering for individuals and catastrophic for businesses.
Every process, every practice must be scrutinised. PCBUs must protect every individual performing work under their control. Complacency is no excuse, but rather is a liability.
Getting legal assistance
If the above concerns your business operations, Business Law WA is here to assist.
If you would like further information about this case, legal assistance with WHS investigation, legal advice on your primary duty of care or understanding if you are a person conducting a business or undertaking and your duties, please reach out to the Business Law WA team via 08 9365 7746 or [email protected].
This article is authorised by Business Law WA, an incorporated legal practice and wholly owned subsidiary of CCIWA. The contents of this article is general in nature and is not legal or professional advice and should not be relied upon as such.
