A company director has been convicted and fined $15,000 after an employee fell from a height and fractured his spine, causing spinal cord damage and tetraplegia. The District Court of New South Wales found that the company director failed to exercise due diligence by taking reasonable steps to ensure compliance with a Work Health and Safety Code of Practice, and also fined the company $150,000.
An employee was directed to remove plastic sheets from a roof in March 2013, but was not provided with instruction on how to perform the task. No risk assessment had been undertaken, no safe work procedure was in place, and the employee was not provided with training, supervision or assistance.
The employee used a damaged domestic ladder, extended and unsecured, to access the roof. The employee lost his balance as he was attempting to pull away plastic sheets, and fell backwards about
2.5 metres onto the ground. The employee was hospitalised following the accident, and remained there until his death almost 18 months later from respiratory failure and recurrent aspiration pneumonia.
District Court of New South Wales Decision
The company director, who is an ‘Officer’ for the purposes of the Work Health and Safety Act 2011 (“WHS Act”), was convicted for failing to exercise due diligence to ensure that the company complied with its primary duty of care. His lack of action was found to have exposed the employee to a risk of death or serious injury contrary to section 32 of the WHS Act.
Rather than relying on the fall management provisions of the Work Health and Safety Regulations 2011 (“WHS Regulations”), the District Court of New South Wales instead focussed on Safe Work Australia’s Managing the Risk of Falls at Workplaces Code of Practice (“Code of Practice”). The Code of Practice is a free resource that contains guidance about fall protection devices, fall-arrest systems, ladders, and emergency responses for falls. Judge Andrew Scotting found that the company director ‘failed to exercise due diligence by taking reasonable steps to ensure compliance with the Code of Practice’.1
Implications for Employers
There have been several cases involving Officers and their requirement to exercise due diligence, as evident in EMA Note Issue 28, 2015. This case is important given the link drawn between due diligence and the Code of Practice. Codes of Practice set a practical benchmark for ensuring the health and safety of workers, and support the broader principles and provisions of the WHS Act and Regulations. This case establishes that Officers are obligated to ensure that their business complies with Codes of Practice or ‘…a technical or an industry standard, if it provides an equivalent or higher standard of work health and safety’.2
Employers should review their due diligence and work health and safety arrangements to ensure compliance with the WHS Act, WHS Regulations and relevant provisions of the 23 Codes of Practice.
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- Safe Work New South Wales v Austral Hydroponics P/L; Safe Work New South Wales v Eang Lam  NSWDC 295, 13.
- Safe Work Australia’s Managing the Risk of Falls at Workplaces Code of Practice, 2.