In R v Sapform Pty Ltd [2020] NSWDC 86, the NSW District Court (the Court) has criticised a formwork company for attempting to blame a worker who died after he was impaled by a metal bar when he fell from a height.  The company was convicted and fined $450,000 for a Category 2 offence for the fatality.

Sapform Pty Ltd, the Person Conducting a Business or Undertaking (PCBU) was contracted to install formwork for the construction of a residential apartment complex in Sydney. The PCBU then subcontracted the installation of the formwork to Mr DaSilva (the Worker) through his own company, Clamster Pty Limited. The PCBU and the Worker had worked together on a number of occasions in the past.

In October 2016, work at the construction site had progressed such that there was a concrete slab with uncapped metal bars protruding from the slab on the first level, and some formwork carried out on the second level.

The second level had a permanent scaffold but there were gaps between the end of the deck and there were no fall protections in place such as handrails or catch decks. In addition, there were several uncovered penetrations, some of which were for the purposes of installing columns.

The Worker attended work and was instructed by the site foreman, who was appointed by the PCBU, to complete the deck on the second level. In the afternoon, the Worker fell three metres from the second level onto the first level and was impaled on a protruding metal starter bar, sustaining fatal injuries.

The PCBU pleaded guilty to the category 2 offence of failing to comply with its health and safety duty to ensure so far as is reasonably practicable the health and safety of workers while at work and exposing workers to a risk of death or serious injury.

The Court noted that there was an accepted industry standard safe work sequence to be followed when laying formwork and commented that it was apparent that the formwork which had been undertaken on the second level deck was not being done in accordance with that standard.

There was an agreement between the principal contractor and the PCBU that after a permitted scaffold was erected, it was the responsibility of the PCBU to install additional fall protection but this fall protection was not installed by the PCBU. The Court also noted that there was no risk assessment in relation to the formwork job carried out, the Worker was not supervised and the PCBU did not provide adequate supervision of the Worker while he constructed the formwork.

In setting the penalty, the Court held that the offence fell within the high range of objective seriousness. The risk was foreseeable and “glaringly” obvious and that easy and inexpensive measures could have been taken to control or eliminate the risk. There were numerous guidance materials and Codes of Practice available which identified the risk and the measures available to manage the risk, and the PCBU did not conduct a risk assessment of the formwork services to be provided.

The Court was highly critical of the PCBU’s submissions about its level of culpability, noting that it:
  • Sought to pass the blame to the Worker for not following the industry standard for installing the formwork and suggested that the Worker had enough experience to know that he should not have proceeded with the formwork installation if was not correct;
  • Tried to blame the site supervisor for not supervising the Worker properly and identifying the risk. The Court stated that the duty of inspection and supervision were non-delegable;
  • Sought to blame the head contractor for failing to provide adequate fall protection; and
  • Sought to excuse the breach by complaining that the Code of Practice and guidance material were limited and out of date.
The Court stated that:
“The risk may have been created by the form workers, but it is incumbent that the person in control of the business, here the defendant, makes appropriate risk assessments, and not simply rely on the experience of the workers, in particular Mr DaSilva.” 
The Court also held that specific and general deterrence were necessary in this matter. Accordingly, it convicted the PCBU and ordered the PCBU to pay a fine of $450,000 and the prosecutor’s costs.

Lessons for employers

PCBUs have the primary duty of care to ensure the health and safety of workers whilst they are at work. This duty is non-delegable and requires PCBUs to do all that is “reasonably practicable” to ensure health and safety. Where measures to eliminate or minimise a known safety risk are available and accessible but are not implemented, then the PCBU, as in this case, has not done all that it is “reasonably practicable” to ensure the safety of workers at work. It will not be sufficient for a PCBU to rely on a worker’s experience as a basis for assuming that things will be doing correctly – the duty is proactive and requires the PCBU to actively implement controls.
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