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Steel Construct Australia Pty Ltd v Guilfoyle[2021] QDC 124

Steel Construct Australia Pty Ltd v Guilfoyle[2021] QDC 124

DISTRICT COURT OF QUEENSLAND

CITATION:

Steel Construct Australia Pty Ltd & Anor v Guilfoyle [2021] QDC 124

PARTIES:

STEEL CONSTRUCT AUSTRALIA PTY LTD

(first appellant)

and

SIMON EPHRAIM NEWITT

(second appellant)

v

AARON JOHN GUILFOYLE

(respondent)

FILE NO/S:

10 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

25 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2021

JUDGE:

Loury QC DCJ

ORDER:

  1. The appeals are dismissed
  2. The first appellant pay the costs of the respondent, fixed in the amount of $2,100.00

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – Where the appellants were found to have breached section 32 of the Work Health and Safety Act 2011 for failing to comply with a health and safety duty under section 19(1) – where the second appellant was the sole director of the first appellant – where the first appellant entered into a contract with a labour hire supplier – whether the first appellant was in a position to influence or direct the workers supplied by the labour hire company

COUNSEL:

P G Jeffrey for the appellant

B J Power for the respondent

SOLICITORS:

Adams Wilson Lawyers for the appellant

Office of Work Health and Safety Prosecutor for the respondent

  1. [1]
    On 7 March 2018 Mr Benjamin Said was working on a construction site at 51 Ferry Road, West End when he fell from level two to level one (the ground level) through a penetration or void in the deck on which he was working. He sustained serious back injuries. The project on which he was working was the construction of multi-storey residential apartments. The penetration through which he fell was destined to be the garbage chute.
  1. [2]
    Mr Said worked for a labour hire company, Workfast Marketplace Pty Ltd. Steel Construct Australia Pty Ltd (“Steel Construct”) engaged three skilled construction workers through Workfast Marketplace Pty Ltd. The second appellant, Mr Newitt, the director of Steel Construct, signed the contract to obtain the workers. Mr Said was one of those workers. He was engaged to install a flooring system referred to as Ultrafloor Board.
  1. [3]
    Each of Steel Construct and its director, Mr Simon Newitt, were convicted after a trial in the Brisbane Magistrates Court of failing to comply with health and safety duty – category 2, contrary to section 32 of the Work Health and Safety Act 2011. 

The particulars of the complaint

  1. [4]
    The particulars set out in the complaint include that Steel Construct failed to:
  1. (a)
    Adequately manage the risks to health and safety associated with the high risk construction work;
  1. (b)
    Provide and maintain a work environment without risks to health and safety;
  1. (c)
    Provide and maintain safe structures;
  1. (d)
    Provide and maintain safe systems of work; and
  1. (e)
    Provide adequate information, training, instruction or supervision to workers involved in high risk construction work. 
  1. [5]
    As against Mr Newitt, the sole director of Steel Construct, the complaint particularised that he did not exercise due diligence to ensure Steel Construct complied with its duty by failing to:
  1. (a)
    Gain an understanding of the nature of the operations of the business or undertaking and generally of the hazards and risks associated with those operations, namely
  1. (i)
    The presence of penetrations or voids in the workplace;
  1. (ii)
    The identification of penetrations or voids in the workplace;
  1. (iii)
    The assessment of risks posed by penetrations or voids in the workplace; and
  1. (iv)
    The application of control measures to eliminate or minimise the hazards and risks arising from penetrations or voids in the workplace. 
  1. (b)
    Ensure that Steel Construct had available for use and used, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, namely appropriate resources and processes to apply the control measures particularised. 
  1. (c)
    Verify the provision and use of the resources and processes to ensure the control measures were applied at the workplace before work commenced and if not, prohibiting work.
  1. [6]
    The appellants accept that the outcome of the appeal against Steel Construct dictates the outcome of the appeal against Mr Newitt. In that respect the principal issue which arises for consideration is whether Steel Construct influenced or directed the workers, including Mr Said.

The appeal

  1. [7]
    The appeal is pursuant to section 222 of the Justices Act 1886. Such an appeal is by way of rehearing.[1] I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination giving due deference and placing a good deal of weight on the Magistrate’s view.[2] The task of an appellate court, as stated in Lee v Lee[3], is to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. In Lee v Lee a majority of the High Court said:

“Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence.  It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”.”[4]

The evidence at trial

  1. [8]
    Mr Peter McKendry was the project manager for the construction of 77 apartments over seven floors at 51 Ferry Road, West End. He was employed by RGD Constructions and oversaw the construction and design of the development. Ultrafloor (Australia) Pty Ltd (“Ultrafloor”) was contracted to provide their unique flooring system for levels two through seven. The system they used involved prefabricated and prestressed concrete beams that were rebated and infilled with fibrous cement sheeting. The Ultrafloor system was in the process of being installed on level two when Mr Said fell through a penetration onto the podium (ground) level.
  1. [9]
    Mr Stuart Austin was the site manager employed by RGD Constructions. His role effectively involved scheduling the trades to ensure that work progressed smoothly on the project. On the day of the incident in which Mr Said was injured, Mr Austin said that the formwork was being prepared on level two on which the concrete deck would be poured. Mr Austin understood that Steel Construct were undertaking the on-site works for Ultrafloor. Mr Austin said that Stewart and Nick from Steel Construct were undertaking the actual installation of the concrete beams and in-fill. There was restricted access to level two during the installation of the Ultrafloor system. To access the deck it was necessary to speak to Stuart Dunn from Ultrafloor or Stewart from Steel Construct or Nick from Steel Construct.
  1. [10]
    A Safe Work Method Statement[5] (“SWMS”) had been completed. A SWMS is a document which outlines the high-risk construction work activities that are carried out within a workplace, the hazards that may arise from those activities and the safety measures put in place to control the risks.  It is required to be completed before any high risk construction work commences pursuant to section 299 of the Work Health and Safety Regulation 2011. 
  1. [11]
    Mr Austin said that Ultrafloor prepared the SWMS. It was the responsibility of the contractor to take new workers through the SWMS and to get them to sign it prior to going onto the site.
  1. [12]
    In cross-examination Mr Austin confirmed that Steel Construct were placing the beams and putting the in-fill between the beams. He confirmed that there was another company referred to as Action Formwork who were engaged to do some of the formwork on site. Steel Construct were not form workers and were not engaged to do formwork as he understood.
  1. [13]
    Mr Stuart Dunn was employed by Ultrafloor as the Queensland manager. He said that usually the installation of the Ultrafloor system was done by subcontractors. In Queensland, Steel Construct had a commercial relationship with Ultrafloor over a number of years commencing in 2013. In relation to the project at 51 Ferry Street, Ultrafloor was contracted to supply and install their flooring system and also the conventional formwork for the podium slab and some other incidental formwork going up the tower. The conventional formwork for the podium level was subcontracted by Ultrafloor to Action Formwork. Mr Dunn said that Action Formwork was engaged to do the conventional components, some cantilevered balconies, edgeboards and “stuff that didn’t suit the (ultrafloor) system”. Steel Construct were contracted to install the beams and the fibre-cement in-fill on levels two through seven. Plans were created which identified the beams that were to be installed. The plans which were tendered in evidence identified penetrations which accounted for the garbage chutes, lifts and stairwells. The plans were provided to Steel Construct however Mr Dunn could not remember who in particular they were provided to. He did say that it was probable that Stewart and Nick and himself all had a copy of the plans.
  1. [14]
    In relation to Steel Construct there was no written contract. Ultrafloor had used Steel Construct to install their flooring system on 10-15 previous occasions. The scope of the work was to load the beams and install the in-fill.
  1. [15]
    Mr Dunn drafted the SWMS. The purpose of such a statement, as indicated, is to assist supervisors, workers and other persons at a workplace to understand the requirements that have been established to carry out high risk construction work in a safe manner. The SWMS sets out the work activities to be undertaken in a logical sequence, identifies hazards associated with each of those activities and describes the control measures put in place to mitigate those hazards. Mr Dunn did not think that he gave the SWMS to Steel Construct prior to attending the work site with it. At the work site there was very little discussion about the SWMS before it was signed. There was no discussion about penetrations or voids. At a later time a review of the SWMS was undertaken and mention was made of the lift and stair shafts.
  1. [16]
    The SWMS for the Ultrafloor scope of works was tendered in evidence[6].  On the front cover of that document it contains a distribution register which sets out the user’s name, their title and the company with whom they work.  The document is signed by each of the parties who were: Mr Terry Coles, the OHS Manager with RGD; Mr Stuart Dunn, the project manager with Ultrafloor; and Mr Stewart Young described as the site supervisor with Steel Construct.  The document states that it was jointly developed by Ultrafloor and Steel Construct.
  1. [17]
    The document further states that on this particular project Ultrafloor engaged Steel Construct to perform the installation task; that employees of Steel Construct were treated like employees of Ultrafloor and that Steel Construct worked within the SWMS that was developed in consultation with Steel Construct. The document refers to the relevant Codes of Practice including “Managing the Risk of Falls at Workplaces 2011” and “Formwork 2016”.
  1. [18]
    For the work activity which involves installation of the beams there are ten tasks listed. The only reference to penetrations is at task eight which states “The Ultrafloor layouts must be followed to allow for penetrations, walls over etc”. The control measure states that when conditions are different on site the designing engineer or Ultrafloor co-ordinator for the project should be contacted.
  1. [19]
    For the work activity which involves the installation of formboard in-fill there are 11 tasks set out. There is no reference to penetrations at all in those tasks. Task number three involves placing the formboard in place in a systematic direction to create a complete and safe deck. The potential hazard identified in undertaking that task is that the board fails when installed in the wrong direction resulting in a fall through the beams. The control measure states “The Ultraform boards will act as a permanent formwork infill board between beams. The form boards have directional strength and must be placed with stamped writing parallel to the beams.”
  1. [20]
    The document indicates on its face that the safety analysis undertaken in the document had been instructed to a number of people who signed the document. Those people included: Mr Stewart Young (from Steel Construct); Mr Nicholas McKenzie (from Steel Construct) and Mr Benjamin Said.
  1. [21]
    Mr Dunn indicated in his evidence that at a later time there was a review undertaken of the SWMS by RGD and Steel Construct. He said that he started completing the document but soon realised that it was to be completed by the installer. He called out to Simon (Newitt) and Stewart (Young) to go through the review with Terry from RGB. He then went and assisted with putting the beams in with Nick (McKenzie).
  1. [22]
    Produced in evidence was that review.[7]  That document indicates that the persons responsible for ensuring implementation, monitoring and compliance with the SWMS were Mr Simon Newitt and Mr Stewart Young.  The document is signed by Mr Stewart Young and states “By signing, the above, I confirm that the SWMS submitted has been developed in accordance with Division 2 of the Queensland Work Health and Safety Regulation 2011 and the content of this Subcontractor SWMS review.”   
  1. [23]
    The document (also signed by Mr Newitt) indicates that Mr Newitt considered that there were a number of issues that required further action. He has handwritten the following:

“① Elec Register + Tags

  ② Signage and Barrier Tape each bay

  ③ Four days – exclusion Zone under – Sign + barriers

  ④ HP checks – team check

  ⑤ Toolbox – weekly (written)”

  1. [24]
    Mr Dunn said that whilst he had some involvement in the placement of the beams he did not assist in the placing of the in-fill in the first week of his being onsite. That was because he was managing the deliveries and was having some problems with them. He started at the site on 27 February 2018. The Workfast Marketplace Pty Ltd employees started on 28 February 2018. They started installing sheets from below the deck because they didn’t have access to the top of the deck on that day. On the Monday (5 March 2018) it started to rain after the truck was unloaded so no further work was undertaken that day. On the Tuesday there was a breeze so the crane operators did not want to work. The Wednesday was the day on which Mr Said’s accident occurred. On that day Mr Dunn did not see any penetrations being covered.
  1. [25]
    On 25 April 2018 Steel Construct issued an invoice to Ultrafloor for the installation of the specialised flooring system for level two. The description of the service provided was “install Ultrafloor as directed. Level 2”. The invoiced amount excluding GST was $37 588.[8]  Mr Dunn said that the invoice was given to him for approval.  In evidence-in-chief Mr Dunn also said that he completed a purchase order in relation to the level two installation.  He said that he completed the purchase order after Mr Said had fallen.  He acknowledged that he should have completed the purchase order prior to the commencement of the work.  The purchase order set out the square metre rate for the installation of the beams and in-fill level by level.[9]  In relation to level two the price was $58 250. 
  1. [26]
    Mr Dunn was not onsite at the time Mr Said fell. He was contacted by Mr Stewart Young and advised of the incident. He said that Workplace Health and Safety Queensland attended the site after the incident and put a prohibition on works continuing until Ultrafloor and Steel Construct had amended the SWMS to deal with penetrations.
  1. [27]
    A Job Safety Analysis was completed on 8 March 2018. That document was tendered in evidence.[10]  It relates to the covering of penetrations and identifies five tasks involved.  Those tasks include (1) identifying the size of the penetration; (2) selecting the material; (3) covering the penetration; (4) affixing the cover and (5) using “hi-vis” paint.  For the project at Ferry Street in particular, the document states that “formwork frame to be positioned to block peno (sic) prior to any worker accessing deck”. That document indicates on its face that it was prepared by Mr Stewart Young as the supervisor and that Mr Stewart Young instructed listed employees in the tasks.  Relevantly it is signed by Mr Nicholas McKenzie. 
  1. [28]
    Mr Dunn said that the document was completed by Mr Stewart Young and himself and others. They went through the formwork code of practice and identified what they would need to do in the future. That document was formalised[11] and was also signed by Mr Nicholas McKenzie. 
  1. [29]
    A number of images were tendered in evidence of the site, particularly level two, after Mr Said had fallen. The images or some of them depict the penetrations in the deck including the one through which Mr Said fell. The penetrations appear to be covered with off-cuts of in-fill board with words such as “NO STANDING DANGER PENETRATION” and “PENO NO STANDING” handwritten on them. Mr Dunn confirmed that such offcuts were not able to withstand the weight of a person. He said that because the strength in the board is in one direction it requires edge support and in any event the span was too great.
  1. [30]
    Mr Dunn accepted in cross-examination that he was the site supervisor. He agreed that he prepared the purchase order approximately one hour after Mr Said’s fall and backdated it to 26 February 2018. The reason he gave for doing so was because once he was notified that there had been an incident he considered that he needed to “cross my t’s and dot my i’s”. He said that he knew that he should have had the document in place before any work started onsite. It was suggested to Mr Dunn that he was attempting to protect himself and Ultrafloor in doing so. His response was to ask “from what?”. It was suggested that in backdating the document he was trying to shift blame to Steel Construct. He said that wasn’t his intention. Whilst the purchase order indicated that the installation was to be as per their standard terms and conditions, Mr Dunn accepted that there was no contract in place between Ultrafloor and Steel Construct, that he could not remember what were the standard terms and conditions and that he could not find a copy of the standard terms and conditions.
  1. [31]
    Two emails were adduced in cross-examination[12].  The first was from Mr Newitt to Mr Dunn on 24 April 2018 in which he indicates that the cost associated with the level two Ultrafloor system was $19 395 plus GST and $1050 plus GST for “steel angle”.  The email goes on to say:

“As discussed previously, these figures I am providing are cost plus 10% only.  Given we’re just providing external labour (plus Nick from time to time), I’m not too concerned….” 

  1. [32]
    Mr Dunn responded to Mr Newitt with the following:

“UF costs for labour and supervision for level 2 add to $20 662.  Subtracted from the Purchase order figure of $58 250 this gives $37 588 which you should invoice for level 2…..” 

  1. [33]
    It was suggested to Mr Dunn that Mr Newitt’s email reflected the arrangement between the two companies, that is, that other than the riggers it was external labour that was being provided by Steel Construct and that the supervision of the workers was the responsibility of Ultrafloor. Mr Dunn’s response was “not to my mind, no”. He agreed that the email he sent indicated that he was effectively back-charging for labour and supervision. It was put to Mr Dunn that he was back-charging the cost of supervision from the beginning of the project. His response was “not from the beginning of the project”. He provided an explanation which was that a couple of days after the incident, the Steel Construct workers had some issues with the crane workers, a consequence of which they (the Steel Construct workers) walked off the job. Mr Dunn employed some labour hire workers to continue the work thereafter and he supervised them himself. He told Mr Newitt that Mr Young should not come back to the site for a while. Subsequently, Mr Newitt provided supervisors intermittently. Mr Dunn disagreed that Ultrafloor was responsible for the labour and supervision for level two.
  1. [34]
    Mr Newenhouse from Workfast Marketplace Pty Ltd gave evidence as to the booking of workers by Steel Construct including Mr Said.
  1. [35]
    Mr Said gave evidence in the trial. He said that when he first attended the site he went through an induction process with the builder before meeting “Stuart” who was his supervisor and the person telling him what to do. He provided a description of “Stuart”. He said that “Stuart” was working as a rigger and putting the concrete beams in. He said that he also met Nick who was a rigger and was putting beams in place with “Stuart”. By reference to the work that they were undertaking Mr Said was speaking of Mr Stewart Young and Mr Nicholas McKenzie.
  1. [36]
    Mr Said’s job, he said, was to install concrete sheeting in between each beam to create a surface onto which the concrete would be poured to create a floor. He said that he was directed to do this work by “Stuart” and “Nick”. They were the only two people he spoke to. He said in the beginning there were a few complications because it was a new team. Usually upon turning up of a morning they would go up to the level two and “Stu” would indicate what they should do and what had been planned for the day. He said that the two supervisors, “Stuart” and “Nick” were installing the beams as he and the two other labourers were doing the sheeting. Every now and again one of either “Stuart” or “Nick” would come over and check on the work that the labourers were doing. On 7 March 2018 he was installing flashing around a penetration which he had been directed to do, by “Stuart” when he fell through a hole and broke his back. He said that he was looking for a screw when he fell through the hole. He said that the penetration was covered with offcuts from the sheeting that he was using to install the floor. He said that it was possibly a few days earlier that this particular penetration had been covered.
  1. [37]
    In cross-examination Mr Said confirmed that the “Stuart” that he was referring to worked for Steel Construct. It was put to him that “Stuart” and “Nick” were not his supervisors. He denied that suggestion. He could not say whether he put the particular covering over the penetration through which he fell. He agreed that on 22 March 2018 he told an investigator that he thought he wrote the words on the piece of offcut that was used to cover the penetration through which he fell. He accepted that he had a personal injuries action on foot. He was unsure whether it was against five entities. He believed that Steel Construct was one of those entities. He denied that “Nick” was a personal friend of his. He did not accept that it was Stuart Dunn who had supervised him.
  1. [38]
    Another of the Workfast Marketplace Pty Ltd employees gave evidence. Mr George Adams said that “Stu Dunn” was the supervisor. On the day of the incident the penetration through which Mr Said fell was covered with plywood. It had something written on it which said “do not stand on” or “penetration”. At the toolbox meeting the workers were told to watch out for penetrations actually covered or barriered off. He said that Stuart Dunn was the person who advised how to cover the penetrations. Mr Adams was not cross-examined.
  1. [39]
    Mr Nicholas McKenzie gave evidence. He was a rigger employed by Steel Construct. He said that Steel Construct provided two licensed riggers to do the rigging work and the crane work at the site at Ferry Street. Mr McKenzie said that he and Mr Stewart Young, another rigger were landing the beams on the walls. He could not say what others were doing. He said “if a form worker’s doing formwork, that’s up to them”. He said that he wasn’t paying attention to what the form workers were doing. He said that they only became aware of the penetrations once they’d been practically built. He said in response to questions about an image of the formwork that the material between the concrete beams was FC sheets (fibre cement sheets) which would have been installed by “Ultrafloor’s labour hire guys”. He said that their names were George, Ben and Cliff. He said that Mr Stuart Dunn was directing the load sequencing of the trucks, telling them what was coming and supplying them with the layout for the day’s works. When he was landing beams on level two Mr Stuart Dunn was there consistently. He said that when he was landing the beams Mr Stuart Dunn and the “Ultrafloor guys” were involved with the FC sheets. He said that penetrations were outside his scope of work so he wasn’t paying attention to them.
  1. [40]
    Mr McKenzie heard a noise which was Mr Said falling through the penetration. He had seen Mr Said covering a penetration with FC sheets although could not remember on what day that occurred.
  1. [41]
    In relation to exhibit 33 which was the Job Safety Analysis undertaken by Mr Stewart Young and Mr Stuart Dunn on 8 March 2018 and with respect to the activity of covering penetrations, Mr McKenzie claimed to have never seen the document. He identified his signature on the second page of the document but claimed never to have seen the front page of the document which sets out the five tasks involved in covering penetrations.
  1. [42]
    When asked about other occasions on which Mr McKenzie might had undertaken the work of placing the in-fill sheets, he said that he had rarely done so. When he did do so he said he was instructed on what to do by Mr Stuart Dunn. Mr McKenzie denied supervising any workers on the Ferry Road project.
  1. [43]
    An application was made to treat Mr McKenzie as a hostile witness on the basis of his demeanour and a prior inconsistent statement. That application was refused by the learned Magistrate on the basis that his demeanour did not indicate that he was adverse to the person calling him. Limited submissions were made as to the prior inconsistent statement and no reasons were given with respect to that aspect of the application.
  1. [44]
    Mr McKenzie was not cross-examined.
  1. [45]
    Other witnesses called included Mr Matthew Jones, an engineering surveyor, who was standing around five metres from where Mr Said fell. Mr Jones did not see that occur.
  1. [46]
    Mr Pedro Guirillo, the manager of Action Formwork Pty Ltd (“Action Formwork”) was called. He identified the formwork in photographs for which his company was responsible. That was limited to standard formwork. It was suggested to him that Action Formwork’s contract with Ultrafloor was to do all the formwork. He denied that was the case. The contract was not tendered in evidence. He said that what his company did was a component of the formwork to support the Ultrafloor system. His workers worked below the deck and not on top of the deck. The person on the top of the floor, Ultrafloor was responsible for the works above. He denied that in-fills and covering penetrations were a component of his work. After Mr Said’s fall he said that there was an investigation undertaken by Ultrafloor and RGD. As a variation to the contract Action Formwork then covered the penetrations from below the deck. He acknowledged that he had told an investigator that if he was working above the deck and saw a penetration he would cover it. He explained however that he was not working above the deck but below the deck. He denied being concerned about his own position as a consequence of Mr Said’s fall.
  1. [47]
    Mr Dain Walker was the leading hand for RGD. He was in charge of RGD’s staff, carpenters and labourers who were doing general work not covered by either of the subcontractors. On the date of the incident he was on the deck with Mr Jones and had been so for around 10 to 20 minutes when Mr Said fell. He saw a couple of penetrations in the deck. He saw a cover over one of the penetrations which had written on it “no step – penno”. He had his back to Mr Said when he fell so did not see the fall.
  1. [48]
    The only other witness called was Mr Jared Bentzen who was an Inspector appointed under the provisions of the Work Health and Safety Act 2011.  He conducted an investigation into the incident which included taking photographs, a number of which were tendered in evidence.  He measured the penetration through which Mr Said fell to be 650 millimetres between the concrete beams by 780 millimetres.  He noted that some penetrations in the ground floor were covered with fixed coverings.  He also noted offcuts of laminated veneer lumber which were covering another penetration on the deck above. 
  1. [49]
    Mr Stewart Young was not called to give evidence. Mr Newitt did not give evidence. No evidence was called in either defence case.

The Magistrates reasons

  1. [50]
    The learned Magistrate considered that the evidence established that Steel Construct was engaged in work in installing the Ultrafloor board system. She had particular regard to the evidence of Mr Stuart Dunn and Mr Nicholas McKenzie. She found that Steel Construct had engaged workers, including Mr Said, to perform that work and by doing so had influenced or directed workers.
  1. [51]
    She considered that the SWMS which was signed by Mr Stewart Young and Mr Nicholas McKenzie provided clear evidence of the work that Steel Construct was performing at the site and in particular the influence that Steel Construct had on workers engaged in that task.
  1. [52]
    The SWMS Review[13] which was completed by Mr Newitt demonstrated that Steel Construct was prepared to accept the scope of work and to accept responsibility for workers it had engaged to complete the work.  This also demonstrated that Steel Construct influenced or directed workers. 
  1. [53]
    The learned Magistrate accepted the evidence of Mr Dunn and Mr Said despite some discrepancies that arose in their evidence. She was, in the end, satisfied beyond reasonable doubt that Steel Construct owed the relevant duty and was directing or influencing workers including Mr Said in relation to the installation of Ultrafloor system at the site. She found that Steel Construct failed to comply with the duty it owed pursuant to section 19(3)(a) and (c) of the Work Health and Safety Act 2011 to ensure so far as was reasonably practicable, the provision and maintenance of a work environment without risks to health and safety and the provision and maintenance of safe systems of work. 
  1. [54]
    The learned Magistrate said that the hazard of penetrations had been created by the installation of the flooring system. Steel Construct allowed workers to continue to work in the vicinity of penetrations and failed to address the risk which the penetrations posed. That in turn meant that workers were in an unsafe workplace and working on an unsafe structure.
  1. [55]
    The SWMS did not address the penetrations and therefore the learned Magistrate found that there was no safe system of work developed. Information or instruction was not provided to workers regarding the risk posed by unguarded penetrations. The penetrations, she found, were covered in a haphazard manner with Ultrafloor board, which was not compliant as the board could not withstand the impact of a fall onto it and was not securely fixed.
  1. [56]
    The learned Magistrate accepted that the likelihood of a worker falling through the penetration was high due to its size and proximity to the workers. The degree of harm likely to result from a fall was high. She found that Steel Construct ought to have reasonably known about the penetrations and about ways to eliminate or minimise the risk as the Code of Practice evidenced what should be addressed with respect to such risks.
  1. [57]
    The learned Magistrate found that the risk could be eliminated or minimised by covering the penetration with a compliant cover, not allowing workers to continue work until the penetration was covered and detailing penetrations and the hazard they posed in the SWMS. Additionally workers could have been informed, trained and supervised on the particular control measures as against the risk of falling. She found that these control measures were reasonably practical. As a minimum she considered that Steel Construct ought to have stopped work until the penetrations were adequately covered.
  1. [58]
    The failure of Steel Construct to comply with its safety duty exposed an individual to risk of serious injury.
  1. [59]
    With respect to Mr Newitt she found that the SWMS provided evidence of the failure by Mr Newitt to identify the hazard of the penetrations in the work Steel Construct was undertaking as there was no reference to the obvious risk of a fall posed by the penetrations. The review of the SWMS did not alert Mr Newitt to this failure.
  1. [60]
    She found that Mr Newitt failed to gain an understanding of the hazards that were associated with the work of Steel Construct. That was a failure to exercise due diligence. Mr Newitt should have known of the presence of the penetrations in the vicinity of the workers which Steel Construct had engaged. He should have identified the hazards and addressed the risk and implemented control measures prior to permitting work to start or prior to its continuing when it was known to him. She found that Mr Newitt failed to exercise due diligence to ensure that Steel Construct complied with the health and safety duty it owed.
  1. [61]
    The learned Magistrate further found that the failure to comply with the duty under section 19 commenced on 27 February 2018 and continued until Mr Said fell through the penetration, referencing Williamson v Betterlay Brick and Block Laying[14].

Appeal ground 1 – the Magistrate erred in finding that Steel Construct owed a duty or obligation under section 19

  1. [62]
    It is contended by the appellants that Steel Construct was not in a position to influence or direct workers, including Mr Said in relation to the installation of the in-fill boards.
  1. [63]
    Section 19 of the Work Health and Safety Act 2011 (“the Act”) provides for the primary duty of care.  It states:

“(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

  1. (a)
    workers engaged, or caused to be engaged by the person; and
  1. (b)
    workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

  1. (2)
    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.
  1. (3)
    Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
  1. (a)
    the provision and maintenance of a work environment without risks to health and safety; and
  1. (b)
    the provision and maintenance of safe plant and structures; and
  1. (c)
    the provision and maintenance of safe systems of work; and
  1. (d)
    the safe use, handling and storage of plant, structures and substances; and
  1. (e)
    the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
  1. (f)
    the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
  1. (g)
    that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
  1. (4)
    …”
  1. [64]
    Section 32 of the Act creates the category 2 offence of failing to comply with a health and safety duty. It reads:

“A person commits a category 2 offence if—

  1. (a)
    the person has a health and safety duty; and
  1. (b)
    the person fails to comply with that duty; and
  1. (c)
    the failure exposes an individual to a risk of death or serious injury or illness.”
  1. [65]
    It was not in dispute either at trial or on appeal that Steel Construct was a “person conducting a business or undertaking” (“PCBU”). As such it was required to ensure the health and safety of workers that Steel Construct engaged and workers whose activities they were in a position to direct or influence, as far as was reasonably practicable.
  1. [66]
    It is contended by the appellants that the legislation requires both, that Steel Construct engage the worker and that they direct or influence them before the duty arises. The respondent submits that the effect of section 19 is that a PCBU must protect the health and safety of any person who fits into either of category (a) or (b). It is submitted that there will not necessarily be a crossover between the people in those categories, and that in particular, those in category (b) may not be in category (a).
  1. [67]
    The Explanatory Note to the legislation is provided as support for this interpretation. In relation to section 19 it states:

“The PCBU has a duty to ensure, so far as is reasonably practicable, the health and safety of workers that are:

  • directly engaged to carry out work for their business or undertaking
  • placed with another person to carry out work for that person, or
  • influenced or directed in carrying out their work activities by the person,

while the workers are at work in the business or undertaking.”

  1. [68]
    The Explanatory Note goes on to state that the changing nature of work organisations and relationships “means that many who perform work activities do so under the effective direction or influence of someone other than a person employing them under an employment contract” (emphasis added). It states that the Bill provides a broader scope for the primary duty of care, to require those who control or influence the way work is done to protect the health and safety of those carrying out the work.
  1. [69]
    Whilst the “and” at the end of section 19(1)(a) may seem to indicate that both subsections (a) and (b) must be satisfied for a duty to exist, on a proper reading, section 19(1) is framed in terms of who a PCBU owes a duty to. Had the word “workers” been omitted from subsections (a) and (b) and instead inserted immediately before the dash, a reading in that case would suggest that a PCBU owed a duty to “the health and safety of workers” whom satisfied both (a) and (b) cumulatively. Instead, the provision is phrased such that (a) and (b) are potentially distinct categories of workers whom are owed a duty by a PCBU.
  1. [70]
    On a reading of the plain wording of section 19 it is clear that section 19 provides a duty on a PCBU to two different classes of workers: workers engaged, or caused to be engaged by the PCBU, and workers whose activities in carrying out work are influenced or directed by the PCBU. The plain wording of the section is consistent with the intention of the legislature as set out in the Explanatory Note.
  1. [71]
    It was not in dispute at trial or on appeal that Steel Construct engaged Mr Said as a worker in that he was an employee of a labour hire company who had been assigned to work in its business.[15] The workplace was 51 Ferry Road where the work was carried out by Mr Said for Steel Construct.  In my view on the plain reading of section 19, Steel Construct owed a duty to Mr Said to ensure his health and safety as far as was reasonably practicable whilst he was working at 51 Ferry Road, West End.  
  1. [72]
    If I am wrong in my interpretation of section 19 of the Act, I am also satisfied that Steel Construct was able to direct and/or influence Mr Said’s activities whilst on-site. As the learned Magistrate found, the documentary exhibits demonstrated that Mr Stewart Young of Steel Construct was Mr Said’s supervisor.
  1. [73]
    The criticism levelled at the learned Magistrate’s reasons is that she referred to only a small body of evidence. She did not delineate between the weight she gave the oral testimony and that which she gave the documentary evidence that was adduced.
  1. [74]
    The learned Magistrate accepted the evidence of Mr Dunn. She noted that his evidence had been challenged as being affected by self-interest. In particular she referred to his evidence that he back-dated the purchase order. She considered that his ready acknowledgement that he had done so meant that his having backdated the document did not ultimately detract from his credibility. The learned Magistrate had the advantage of seeing and hearing the evidence of Mr Dunn. Criticism is levelled at the prosecutor at trial (not counsel appearing for the respondent on the appeals) for not leading evidence as to why Mr Dunn backdated the purchase order. Such a question would not be admissible in evidence-in-chief as it goes to credit only. Mr Dunn did give an explanation in cross-examination that he knew that the document needed to be completed and should have been completed prior to the works commencing and he was wanting to get his paperwork in order given Mr Said’s fall. I infer that he was cognizant of the investigation that such a fall would have initiated by Workplace Health and Safety Queensland. The learned Magistrate accepted this explanation for why he backdated the purchase order.
  1. [75]
    The appellants rely upon a decision of a learned Magistrate in the case of Kent Fleming v Australian Thoroughbreds Pty Ltd[16] as a demonstration of how an admission to a forgery undermined the credibility of the witness.  The forgery was said to be a false claim for expenses.  The forgery was, but one matter which led the learned Magistrate to find in that case that the witness was not a witness of truth.  Included was that his evidence was in direct contrast to documentary evidence which he had authored.  This decision is no more than an example of how a forged claim in that case led to the rejection of the evidence of the witness. 
  1. [76]
    Having conducted a real review of the evidence, that Mr Dunn backdated the purchase order does not cause me to doubt the honesty or reliability of his evidence. I consider that the explanation he gave was a plausible one, that he was wanting to get his paperwork in order, I infer because he knew that there was to be an investigation into Mr Said’s fall. When cross-examined he queried what he could be protecting Ultrafloor and himself from by backdating the document. It was suggested he was trying to shift blame to Steel Construct. I do not consider that by backdating the purchase order that Mr Dunn was trying to shift blame to Steel Construct. The purchase order did no more than set out the cost of installing the Ultrafloor system on each level. It did not provide evidence as to who was responsible for installing or supervising the installation of the Ultrafloor system. At most the purchase order stated that the installation was to be as per the terms and conditions. It is unknown what the terms and conditions were as no contract was able to be located by Mr Dunn.
  1. [77]
    Another feature to the evidence which suggests to me that Mr Dunn was not the supervisor is that he wasn’t at the worksite at the time of Mr Said’s fall and had not intended to be at the site at all on that day.
  1. [78]
    The appellants also rely upon the tax invoice issued by Steel Construct which states in the description of the work “install Ultrafloor as directed” to support its argument that it was not Steel Construct who was supervising the installation of the Ultrafloor system. It is important to note however that the tax invoice was issued on 25 April 2018 well after Mr Said fell through the floor and well after the investigation into Mr Said’s fall had commenced. The invoice does not provide compelling evidence as to who was supervising the installation of the system.
  1. [79]
    The third document that the appellants rely upon in support of their argument that Ultrafloor was responsible for supervising Mr Said and the other labour hire employees in the installation of the Ultrafloor system is the email correspondence between Mr Dunn and Mr Newitt on 24 April 2018. Mr Dunn accepted that by the email he was indicating that the costs that Ultrafloor incurred in providing labour and supervision for the installation of level two were $20 662. That figure was to be subtracted from the figure of $58 250 which was set out in the purchase order provided to Steel Construct. Steel Construct was therefore to invoice an amount of $37 588 to Ultrafloor. Mr Dunn explained in evidence that after Mr Said’s fall the “Steel Construct crew” had some issues with the “crane crew” and walked off the job. Mr Dunn then obtained some labour hire employees from another company to continue the work. This is the reference to the labour and supervision provided by Ultrafloor in the invoice. It was for labour and supervision provided after Mr Said’s fall. Mr Dunn told Mr Newitt that Mr Young should not return to the site for some time. Subsequent to that he said that Mr Newitt had supervisors there intermittently. Mr Dunn’s evidence on that point is, in my view, supported by the contents of his email correspondence in which he says “with more of Nicks presence and some speed improvements hopefully that margin can improve next month. With any luck we may get 2 levels next month? It’s a long one so maybe.” In Mr Newitt’s email to Mr Dunn he in fact offered to supply Nick for a week commencing Monday 30 April.
  1. [80]
    Important to a consideration of who was responsible for supervising the installation of the Ultrafloor system is the documentary evidence.
  1. [81]
    The SWMS indicates on its face that the installation sub-contractor (for the Ultrafloor system) was Steel Construct. It also indicates on its face that the Site Supervisor was Mr Stewart Young of Steel Construct. The authorisation signed by Mr Newitt states that Steel Construct, the installing contactor had undertaken a “radikal and independent risk assessment” for the project and acknowledged that the SWMS was the appropriate means to deliver the project in a safe and workmanlike manner. Mr Young signed the authorisation as site supervisor. The document sets out that Ultrafloor had engaged Steel Construct to perform the installation task.
  1. [82]
    The Review of the SWMS[17] likewise makes clear that Mr Newitt and Mr Young were the persons responsible for ensuring implementation, monitoring and compliance with the SWMS.  The amended SWMS which was handwritten after Mr Said’s fall makes clear that the supervisor was Mr Young and that it was he who instructed the employees as to each of the activities which were necessary to cover penetrations.  Mr Young signed that document on 8 March 2018, the day following Mr Said’s fall.  In that respect it is contemporaneous with the work being undertaken. 
  1. [83]
    The appellants also argue that the learned Magistrate ought to have made a finding that it was Mr Said who covered the penetration through which he fell. It is argued that this was a finding which impacts upon the credibility of Mr Said and in particular his evidence as regards who was supervising him. Mr Said’s evidence was that Mr Young and Mr McKenzie were the men supervising him. Mr Said testified that he was aware that the penetration was present in the deck. It was covered “possibly a few days beforehand” by any one of the workers on the deck (Mr Young, Mr McKenzie, Mr Said, Mr Adams and the other labour hire worker). Mr Said’s evidence was that Mr Young directed the workers to cover the penetrations using off-cuts of the fibre cement sheeting. It was suggested to Mr Said in cross-examination that Mr Young and Mr McKenzie were installing the beams and were not supervising Mr Said and the other workers. Mr Said disputed that to be so. He said that Mr Young and Mr McKenzie would come and check on their progress. When it was suggested to him that he covered the penetration through which he fell he said “I don’t know if I put that exact penetration cover on the board.” He did not know if the handwriting on the board was his own. It was established that he had acknowledged to the workplace investigator that it was his writing on the board. That Mr Said wrote on the board does not necessarily mean that he was the person who covered the penetration with the board.
  1. [84]
    Mr Said accepted that he had made a personal injuries claim. He was not sure how many defendants there were to that claim. He believed that Steel Construct was one of those entities. He readily accepted that he had a self-interest in the outcome of the trial because he had a broken back.
  1. [85]
    The learned Magistrate referred in her reasons to the argument that Mr Said’s evidence was coloured by his self-interest in the outcome of the trial. She did not consider it necessary to make any finding with respect to whether it was Mr Said who covered the penetration with the fibre cement offcuts. She said that if it was Mr Said who covered the penetration through which he fell it served to demonstrate the inadequacy of the those supervising him to address the risk that was posed by the penetrations.
  1. [86]
    I do not consider it necessary to make any finding as to who covered the penetration. Mr Said accepted that he did cover penetrations in the deck with the fibre cement offcuts. That does not, in my view, impact upon whether Steel Construct had a duty to him or whether it failed to comply with that duty. I do not consider that Mr Said’s acknowledgement that he had an interest in the outcome of the trial tends to suggest that his evidence cannot be accepted. Mr Said’s evidence is supported in my view by the documentary evidence which quite clearly indicates that Mr Stewart Young was the supervisor.
  1. [87]
    Mr Adams described Mr Stuart Dunn being the supervisor. The learned Magistrate did not refer to this evidence, nor did the prosecutor in her submissions. Mr Adams was not cross-examined. He only referred to one “Stu” in his evidence when there were in fact three working on the site, Mr Young, Mr Dunn and Mr Austin. He did not provide a description of Mr Dunn so it is unclear to me that he was in fact speaking of Mr Dunn rather than Mr Young. If he is indeed speaking of Mr Dunn then his evidence is in any event contrary to the documentary exhibits referred to above. It does not cause me to doubt that Mr Young was the supervisor.
  1. [88]
    The learned Magistrate’s only references to Mr McKenzie’s evidence were, to the effect that, the work of Steel Construct included installing Ultrafloor flooring systems; that he had previously undertaken such installation jobs himself and had placed the in-fill panels between the concrete beams; and that the plans provided to him indicated the penetrations in the deck.
  1. [89]
    Whilst I can only assess the transcript of Mr McKenzie’s evidence it appears to me that he tried to distance himself from anything to do with the penetrations in the deck. For instance when asked about the layout that he was provided for each part of the Ultrafloor system that was being installed he said that such layouts indicated the beam numbers and their location. When asked whether the layout indicated the presence of penetrations for “stairwells etcetera” he responded “That had nothing to do with me. All I was interested in was the beam numbers and what was sitting on the track at the time. And then we would place them where they – where the floor layout told us to.”
  1. [90]
    Mr McKenzie said that he and Mr Young, a rigger, were landing beams. When asked what the other workers were doing he said “I couldn’t speak for somebody else. I was doing what I do. I rig beams. If a form worker’s doing form work that’s up to them”. He said that he wasn’t paying attention to what the form workers were doing. He said that he only became aware of the penetration when it was practically built. He had no prior warning of it. He referred to Mr Said and Mr George and another worker as “Ultrafloor’s labour hire guys”. When asked how far ahead he was landing the beams to the in-fill being installed he said “I’m not sure. I was landing beams. Stuart Dunn and Ultrafloor guys were involved with the FC sheets so how fast or how slow they went was up to them.” When asked did he see the appearance of the penetrations in the deck change at all he said “No, that was outside my scope. Penetrations weren’t my scope of work so I wasn’t paying attention to them sorry.”
  1. [91]
    Mr McKenzie’s evidence was at times internally inconsistent. He said that he saw Mr Said on the day he fell. He was on level two placing the in-fill boards. When asked where he was working by reference to the photographs Mr McKenzie said that Mr Said was all over the place. He said “I wasn’t watching him. I was landing beams. You’d have to ask Stuart Dunn”. Mr Dunn was not present on the site on the day of Mr Said’s fall. He was on the Gold Coast. He attended the site upon being advised by Mr Young that Mr Said had fallen. That was not disputed at the trial. Quite inconsistently with his statement that he wasn’t watching Mr Said, Mr McKenzie said that he had seen Mr Said near a penetration covering it with fibre cement sheets just prior to his fall through that penetration. Mr McKenzie appears to me to be attempting to shift blame onto Mr Dunn and Mr Said for the fall.
  1. [92]
    As referred to above Mr McKenzie stated that he had never seen the first page of the amended SWMS despite the fact that the document is clearly signed by him on 8 March 2018 as an acknowledgement that Mr Young had instructed him in the Job Safety Analysis. This was done the very day after Mr Said’s fall. Mr McKenzie provided no explanation for what he understood that he was signing. It stretches credulity that he would not have seen the amended SWMS when it was completed and signed the day after Mr Said’s fall. Mr McKenzie denied providing any supervision at the site. On a reading of the whole of his evidence it seems very much to me that he was attempting to present Mr Dunn as the supervisor at any opportunity that he could. It is unsurprising to me that the learned Magistrate, whilst not specifically indicating, rejected his evidence. His evidence does not lead me to doubt the credibility and/or reliability of the evidence of Mr Dunn or Mr Said.
  1. [93]
    The appellant argues that an adverse inference should be drawn against the prosecution for failing to call Mr Stewart Young to give evidence at the trial when he was a material witness. It is unknown to me whether Mr Young was present on site when the fall occurred. The respondent submits that he was not. The appellants accept that there is a suggestion that Mr Young was not present on site when Mr Said fell. That in itself may provide a reason why he was not called.
  1. [94]
    It was not submitted at trial that the prosecutor did not fulfil her duty of calling all witnesses “whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based”[18].  I do not consider that the prosecutor was duty bound to call Mr Young in order to give a complete account of events.  The documentary exhibits clearly indicate that Steel Construct had engaged Mr Said and Workforce Marketplace workers and were in a position to direct or influence their work.  Even if an inference unfavourable to the prosecution was drawn, that Mr Young would have exposed facts unfavourable to its case, that would not detract from the documentary exhibits which clearly support the evidence of Mr Said and Mr Dunne.  As a general rule however, in a criminal trial, the proper approach is not to speculate about what a person might have said if called to give evidence.[19]
  1. [95]
    The documentary evidence supports the evidence of Mr Dunn and Mr Said that it was Mr Young who was responsible for the supervision of Mr Said and the Workforce Marketplace workers. On a consideration of the whole of the evidence I am satisfied beyond reasonable doubt that Steel Construct was directing or influencing the workers who were involved in the installation of the Ultrafloor system.

Appeal grounds 2 and 3  - Steel Construct did not fail to discharge its duty

  1. [96]
    Grounds 2 and 3 assert effectively that based on the matters relied upon for ground 1 that Steel Construct did not fail to discharge its duty under section 19 of the Work Health and Safety Act 2011.  By the findings I have made in relation to ground 1, Steel Construct permitted workers it had engaged and whom it was able to direct and influence, to work in the vicinity of penetrations in the deck without any covering or protection or with even a safety plan to mitigate the risks of this high risk construction work. 
  1. [97]
    There is nothing in grounds 2 and 3.

Ground 4 – specified control measures not reasonably practicable

  1. [98]
    The control measures particularised in the complaint were:
  1. (a)
    managing the risk of the high risk construction work in accordance with Work Health Safety Regulation 2011;
  1. (b)
    implementing controls necessary to minimise the risk to any person arising from the hazard including:
  1. (i)
    installing a fall protection cover that was able to withstand SAID’s weight and was securely fixed in place;
  1. (ii)
    installing edge protection;
  1. (iii)
    installing a fall arresting platform;
  1. (c)
    providing and maintaining a Safe Work Method Statement which identified the hazard of penetrations or voids in the workplace, assessing the risk of falling from one level to another through penetrations or voids and implementing effective controls. 
  1. (d)
    Providing effective information, instruction, training and supervision to workers on the selection and application of controls to eliminate or minimise the risk of injury from falling from one level to another. 
  1. [99]
    The learned Magistrate found that elimination or minimisation of the risk of falling through a penetration could have been affected by covering the penetration with a compliant cover, not allowing workers to continue work until the penetration was covered and detailing penetrations and the hazard they posed in the SWMS as well as providing information and training and supervision to workers on the particular controls measures, against the risk of fall through penetrations. She found that those things could have been done readily and that they were done so quickly after Mr Said’s fall demonstrates how easily they could have been applied. She said that Steel Construct as a minimum could have stopped work until the penetrations were adequately covered.
  1. [100]
    The appellants argue that the learned Magistrate went beyond the specified measures particularised in the complaint by finding that Steel Construct could have stopped work until the penetrations were adequately covered and that this amounts to an error.
  1. [101]
    It is argued that the learned Magistrate failed to consider whether the control measures particularised were reasonably practicable to achieve the provision of a safe working environment at the time leading up to the incident but rather relied on hindsight to make her findings. Any question as to whether something was reasonably practicable in relation to a duty must be answered at the time of the alleged offence based on what was known or ought reasonable to have been known. The appellants rely upon Safework (NSW) v Tamex Transport Services Pty Ltd (t/as Tamex)[20] for that proposition. As stated in Safework, that the appellants chose to take the particular steps that it did immediately after the incident is some evidence of the fact that those particular steps were reasonably practicable. 
  1. [102]
    It is obvious from the plans of level two and from the images tendered in evidence that there was a risk of falling through a penetration. The penetrations were just that, holes in the deck which were large enough for a person to fall through. The consequences of a fall from a height of more than three metres[21] onto a concrete surface would at least involve serious injury.  Where such a risk exists the obvious control measure that is reasonably practicable to implement is covering the penetration.  The fixing of a cover that was capable of withstanding the weight of a person is a simple and inexpensive method of reducing the obvious risk of a fall. The “Managing the Risk of Falls at Workplaces Code of Practice 2011” sets out that holes, penetrations and openings through which a person could fall should be made safe immediately after being formed.  It provides that if a cover is used it should be made of a material strong enough to prevent persons or objects falling through and must be securely fixed to prevent any dislodgement or accidental removal.  It provides an example of a covering and a danger sign. 
  1. [103]
    The “Formwork Code of Practice 2016” also states that “any penetration where there is a risk that person or an object could fall through should be covered”. The Code of Practice goes on to describe appropriate covers mechanically fixed to the floor. It also states that ply covers should be painted in a bright colour and marked with the words “Danger Hole Under” or words to that effect. That has the effect of identifying where a penetration is, particularly when a ply cover might be indistinguishable from other pieces of ply.
  1. [104]
    The appellants argue that it was not within Steel Construct’s capacity as essentially a rigging contractor to meet the specified measures. The formwork contractor, it is argued, was Action Formwork. As referred to above, Action Formwork were working below the deck. Mr Gurillo acknowledged that he had told an investigator that if he was working above the deck and saw a penetration he would cover it, he explained however that he was not working above the deck but below the deck. The responsibility of covering the penetrations on the deck fell to those installing the Ultrafloor system which in turn created the penetrations.
  1. [105]
    It is further argued that Steel Construct was not well placed to know how to minimise the risk of falling through a penetration and that it was reasonable for Steel Construct to rely upon the expertise of other contractors being Ultrafloor and Action Formwork. I do not accept that is so. Steel Construct undertook the work of installing the Ultrafloor system. They employed Mr Said and other labour hire workers in order to do so. It was those workers who were creating the penetrations as they used the in-fill board. It was Mr Stewart Young from Steel Construct who prepared the amended SWMS after the incident which sets out the five processes involved in covering penetrations. They are:
  1. identifying the size of the penetration
  2. selecting the material to cover it
  3. covering it
  4. affixing the cover
  5. using high visibility paint.
  1. [106]
    It is obvious in my view that to minimise the risk of a fall through a penetration that it ought to be covered. The steps identified by Mr Young are all obvious steps involved in covering a penetration. Any person with a duty to ensure that a worker did not fall through a penetration would be able to determine that the simple measure of appropriately covering the penetration was necessary.
  1. [107]
    The appellants took no precautions at all to avoid a risk of a fall through a penetration. The SWMS that Steel Construct developed with Ultrafloor included 11 processes involved in installing the formboard in-fill. Despite that process of installing the in-fill created the very penetration through which Mr Said fell, the SWMS does not include a single activity directed to covering penetrations. The review of the SWMS which was signed by Mr Newitt on 27 February 2018 involved his having identified follow- up items that required further action. The review identifies that it is high risk work. That must be an appreciation of the risk of a fall, yet there are no items identified which are directed to guarding against the risk of a fall through a penetration.
  1. [108]
    I further do not consider that the learned Magistrate went outside the particulars in making a finding that at the very least Steel Construct ought to have stopped work until the penetrations were covered. Managing the risk in accordance with the Work Health Safety Regulation 2011 as set out in particular (a) required that the control measures be put in place before work started.
  1. [109]
    There is nothing in this ground of appeal.

Ground 5 – Simon Newitt did not fail to discharge his duty under section 27 of the Act

  1. [110]
    The appellant accepts that the success of Mr Newitt’s appeal against conviction relies upon the outcome of the appeal by Steel Construct.
  1. [111]
    Mr Newitt’s duty, as an officer of Steel Construct arose under section 27 of the Work Health and Safety Act 2011 to exercise due diligence to ensure that the person conducting the business or undertaking (Steel Construct) complied with that duty or obligation.  If Steel Construct had a duty to take precautions to avoid a worker falling through a penetration then Mr Newitt failed to ensure that Steel Construct complied with that duty. 
  1. [112]
    My having found that Steel Construct owed Mr Said a duty to ensure his safety and that it failed to discharge that duty, I agree with the decision of the learned Magistrate. I am satisfied beyond reasonable doubt of the guilt of Steel Construct and therefore Mr Newitt.
  1. [113]
    My orders are as follows:
  1. The appeals are dismissed.
  2. The first appellant pay the costs of the respondent, fixed in the amount of $2,100.00.

Footnotes

[1] Section 223 of the Justices Act 1886.

[2] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686 at [43].

[3] [2019] HCA 28.

[4] Ibid at [55].

[5] Exhibit 29.

[6] Exhibit 29.

[7] Exhibit 30

[8] Exhibit 31.

[9] Exhibit 32.

[10] Exhibit 33.

[11] Exhibit 34.

[12] Exhibit 35.

[13] Exhibit 30.

[14] [2020] QCA 52 at [59] per Philippides JA.

[15] Section 7 Work Health and Safety Act 2011

[16] M223/16 Southport Magistrates Court

[17] Exhibit 30

[18] Whitehorn v The Queen (1983) 152 CLR 657 at 674; Dyers v The Queen (2002) 210 CLR 285 at [18].

[19] Dyers v The Queen (2002) 210 CLR 285 at [6].

[20] [2016] NSWDC 295 at [76]

[21] As measured by Mr Bentzen, the workplace investigator.

Close

Editorial Notes

  • Published Case Name:

    Steel Construct Australia Pty Ltd & Anor v Guilfoyle

  • Shortened Case Name:

    Steel Construct Australia Pty Ltd v Guilfoyle

  • MNC:

    [2021] QDC 124

  • Court:

    QDC

  • Judge(s):

    Loury QC DCJ

  • Date:

    25 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Dyers v R (2002) 210 CLR 285
2 citations
Jump To
Cite 1 - (2002) 210 CLR 285
Cite 2 - (2002) 210 CLR 285
Lee v Lee [2019] HCA 28
2 citations
Jump To
Cite 1 - [2019] HCA 28
Cite 2 - [2019] HCA 28
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
1 citation
Jump To
Cite 1 - (2016) 90 ALJR 679
Robinson Helicopter Company Incorporated v McDermott & Ors [2016] HCA 22
1 citation
Jump To
Cite 1 - [2016] HCA 22
Safework (NSW) v Tamex Transport Pty Ltd T/A Tamex [2016] NSWDC 295
1 citation
Jump To
Cite 1 - [2016] NSWDC 295
Whitehorn v The Queen (1983) 152 CLR 657
1 citation
Jump To
Cite 1 - (1983) 152 CLR 657
Williamson v Betterlay Brick and Block Laying Pty Ltd(2020) 3 QR 594; [2020] QCA 52
1 citation
Jump To
Cite 1 - [2020] QCA 52

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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