Industrial manslaughter offence introduced in New South Wales
On 20 June 2024, the New South Wales Parliament passed legislation to include a new criminal offence of industrial manslaughter under work health and safety legislation.
Read more...In SafeWork NSW v Li [2018] NSWDC 189 the NSW District Court convicted a person conducting a business or undertaking (PCBU) of failing to comply with a health and safety duty after a worker died following a fall from a ladder as a result of a poor system of work.
Mr Li, who traded as Apple Electronic Security, operated a business that involved installing security systems. In June 2016, Mr Li was engaged by a smash repair business to install seven security cameras at a workshop in NSW. Mr Li sought the assistance of Mr Zhang (the Worker), who he had engaged on prior occasions, to help him with this work.
The Worker was tasked with assisting Mr Li to run cables, pass tools up the ladder, drill holes for installation and remove cabling from the old camera system. At one point during the installation process, the Worker was operating a hammer drill from an extension ladder located at the entry to a workshop with a concrete floor to drill through a double-brick wall. Mr Li held the ladder for the Worker from the ground but then left the Worker after a short period to set up a second ladder.
Whilst Mr Li was away from the ladder, the Worker fell 2.4 metres onto the concrete floor of the workshop. The worker suffered significant injury and later died.
Mr Li was charged and pleaded guilty to breaching sections 19 and 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act) by failing to comply with his health and safety duty and exposing the Worker to a risk of death or serious injury.
The NSW District Court found that the work being carried out was “high risk construction work” as defined by the regulations and that Mr Li had only conducted an informal site inspection and did not have a documented risk assessment or Safe Work Method Statement.
It was suspected that the nature of the work and the weight of the drill this may have caused the Worker to operate the drill with both hands and use his body weight when drilling. The Worker had not been trained on the drilling task and had only been shown the basics of the work to be performed.
The Australian Standard for Portable Ladders recommended that a person have three limbs in contact with a ladder at all times. Similarly, the Code of Practice for Managing the Risk of Falls at Workplaces also stated that:
- extension ladders should only be used as a way to access an area;
- extension ladders should be secured or with someone to hold the base; and importantly,
- only light duty work should be undertaken where three points of contact could be maintained.
The Code of Practice also specifically identified that there was a risk a person could over-balance or fall from a ladder if required to use a hand tool which required two hands to operate.
The NSW District Court noted that the hiring a mobile scaffold, electric scissor lift or mobile hydraulic platform were options Mr Li could have considered when carrying out the work that would have completely avoided the risk. Since the incident, Mr Li had instituted new systems of work including conducting formal written risk assessments for work and ensuring that when a ladder is required it is held down when working with another person.
After considering the seriousness of the offence, and that serious injury resulting from falls from heights were “far too common”, Judge Russell of the NSW District Court convicted Mr Li and imposed a fine of $60,000. Mr Li was also ordered to pay the prosecutor’s costs in the sum of $30,000.
Lessons for employers
It is important that all PCBUs, regardless of their size or level of sophistication, have safe systems of work in place in order to comply with their primary duty of care under WHS legislation – to ensure, so far as is reasonably practicable, the health and safety of workers whilst at work.
Where there is a health and safety risk, the hierarchy of control measures requires the risk to be eliminated or minimised. Simple and inexpensive measures available will be relevant in determining whether a PCBU took all steps that were “reasonably practicable”.
Finally, PCBUs are reminded that codes of practice set out the minimum standards to meet work health and safety requirements and should be taken into account when conducting risk assessments.
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