Hall & Wilcox Case alert: SafeWork NSW v Stitt [2024] NSWDC 255
An excellent case alert here from our Legal Partners at Hall & Wilcox outlining the legal requirement of using licenced scaffolders to erect any scaffolding structure where there would be a risk of a person or object falling more than 4 m.
Facts
The Defendant, Jason Stitt, owned and operated ReidStitt Constructions, which was the builder and principal contractor at a worksite in Point Piper, Sydney. ReidStitt engaged Todd Connell as a casual labour hire employee to erect a mobile scaffold tower at the site. The scaffold was hired from Kennards Hire.
Under Work Health and Safety Regulation 2017 (NSW) (WHSR), scaffold can be erected, altered or dismantled by workers without a high risk work licence so long as it does not reach a height where there would be a risk of a person or object falling more than 4 m. [1] On 9 September 2019, Connell and two other workers erected the scaffold to 8.65m high. Neither of them were licenced scaffolders. The workers were not provided with any instructions on how to erect the scaffold, nor were they directed to the manufacturer’s instructions. Moreover, the workers were not provided with any training on the safe work method statements (SWMS) for the work site. On the same day, Stitt visited the site after the scaffold was erected and saw the structure.
On 11 September 2019, Connell and another worker attended to dismantle the scaffold. Whilst doing so, Connell leaned against a scaffold ledger which gave way, resulting in Connell falling more than 5m to the ground. He sustained serious head injuries that ultimately proved fatal. The evidence showed that the ledger gave way either because the ledgers were supplied by Kennards with faulty spring-loaded latches, or because the workers did not install the ledgers in accordance with the manufacturer’s instructions.
SafeWork NSW prosecuted Stitt for failing to comply with his duty of care under s 19(1) under Work Health & Safety Act 2011 (NSW) to ensure the health and safety of workers engaged by him, which exposed Connell to a risk of death or serious injury. Stitt entered a plea of not guilty but was convicted. He is awaiting sentencing.
Reasons
The Court found that Stitt breached his strict statutory duty by failing to engage a licenced scaffolder to perform the scaffolding work and inspect the structure after it was erected. A licenced scaffolder would have identified the faulty components that ultimately led to the ledger giving way to Connell’s weight. Engaging a licenced scaffolder would have attracted negligible inconvenience and incurred no expense to Stitt as that cost would be passed onto his client.
Stitt contended that he instructed the workers not to erect scaffolding above the height of 4m and therefore it was not reasonably foreseeable to him that the workers would disobey his instructions. The Court rejected Stitt’s argument and found that Stitt had seen the scaffold after it was erected and therefore knew there was a risk of person falling more than 4m. Stitt did not give clear instructions to the workers on how to erect the scaffolding, and he could not rely on his subjective understanding of Connell’s competence but should have considered risks that could arise from Connell’s inadvertence or disobedience.
The Court also found that Stitt failed to devise and implement an adequate system of scaffolding work. There was no evidence that the workers received proper instruction on how to erect or dismantle the scaffold. The SWMS did not take into account the circumstances of the worksite nor did they contain directions for workers to erect scaffolding in accordance with the manufacturer’s instructions.
For these reasons, the Court held that Stitt breached his health and safety duty under s 19(1) and exposed Connell to a risk of death or serious injury.
Key takeaways
Although it was not a scaffolding company that was prosecuted in this case, it is a good reminder that requirements under Work Health and Safety legislation need to be stringently followed. Evidence that an incident may have been caused or contributed to by defective parts provided by a third party may not necessarily absolve the liability of the installer.
In particular, scaffolders need to implement sufficiently detailed safe work method statements that address the site condition and manufacturer’s specifications, and to also provide appropriate training, instruction and supervision to workers to ensure that the work methods are followed in practice.
Contact details:
Tina Lung | Partner
T +61 2 8267 3295 | M +61 402 548 140
tina.lung@hallandwilcox.com.au
https://hallandwilcox.com.au/people/tina-lung/
Rachael Arnold | Partner
T +61 2 8267 3808 | M +61 427 502 796
rachael.arnold@hallandwilcox.com.au
https://hallandwilcox.com.au/people/rachael-arnold/
