Is a subcontractor responsible for a safety breach on a construction site? Which case won?
Panel company hired to supply and install panels for townhouse walls
AC was the principal contractor for the construction of fifty-eight townhouses on the outskirts of Sydney.
The townhouses were to be clustered across nine buildings, referred to as “stacks”.
AC engaged a panel company to supply and install panels that would form the walls of the stacks.
Each panel consisted of two large compressed cement sheets, separated from each other by short steel spacers.
The panels were to be placed vertically, resting on their edges, and then the spaces between the pairs of fibro cement sheets were to be filled by pouring concrete into the voids.
The panels were supplied in bundles, each consisting of several panels laid on top of each other.
Each bundle was secured by being wrapped in heavy plastic sheets.
Panels required to be lifted using pallet hook attached to crane
Because each townhouse stack was multi-level, it was necessary to use a crane to lift the panels and position them.
The principal contractor hired a cranage company for this purpose.
The cranage company provided a mobile crane, a crane driver, and a dogman (the person whose role it is to provide directions to the crane driver during the lift).
To lift each bundle of panels, the crane had to be equipped with a pallet hook, a device effectively consisting of a pair of forklift tines which could be attached to the crane’s hoisting cable.
This pallet hook was provided by the panel company.
To lift a bundle safely, the tines of the pallet hook had to be inserted into the frame of the bottom panel of the bundle.
Pallet hook not secured properly and panel falls from crane
On the morning of 15 December 2017, the crane was being used to lift bundles of panels up to the first level of stack two.
A labourer, engaged by the panel company from a labour hire firm, was doing the job of inserting the tines of the pallet hook into the frame of the bottom panel of each bundle.
The dogman had positioned himself on the first level of stack two to land the loads.
On the ground in the vicinity of the crane there were also two workers who worked for the company engaged by the principal contractor to provide scaffolding.
Unfortunately for those workers, the bottom panel from a bundle being lifted by the crane fell from a height, striking them both. One was not badly hurt, but the other sustained serious injuries.
It became apparent that the panel company’s labourer had inserted the tines of the pallet hook into the panel which was second from the bottom, instead of the bottom panel. This left the bottom panel, which weighed some 76 kilograms, supported only by plastic wrapping. This panel slipped out of the plastic and fell.
SafeWork NSW prosecutes panel company for breach of workplace health and safety duty
A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
It was common ground that the employees of the scaffolding company were “other persons” within the meaning of this subsection.
The central issue was whether the cranage work was “work carried out as part of the conduct of the [panel company’s] business or undertaking”.