Tragic consequences: A reminder of the importance of work health and safety duties

In the recent decision of Martyn Campbell v Lightforce Asset Pty Ltd trading as Erections (WA) (ACN 128327373) and Civil and Allied Technical Construction Pty Ltd (ACN 077924120) [2021] SAET 9, the South Australian Employment Tribunal (the Tribunal) imposed significant fines on two corporations following their failure to uphold their work health and safety duties under the Work Health and Safety Act 2012 (SA) (the WHS Act), resulting in the death of an employee. The decision acts as a reminder of the importance of these obligations for employers and the significant consequences that may follow their breach.

Facts

Mark Fitzgerald, the employee, was employed by the First Defendant, Lightforce Asset Pty Ltd trading as Erections WA (Lightforce). He was performing work at the Bungala Solar Project in Port Augusta under the supervision and control of the Second Defendant, Civil and Allied Technical Construction Pty Ltd (Catcon). Mr Fitzgerald tragically passed away while working at Bungala on 17 February 2018, after being crushed by a pile driver machine.

Lightforce and Catcon were engaged in a “wet hire” contract where Lightforce supplied a pile driver machine and machine operator to Catcon to erect solar panel arrays at the Bungala Project. However, neither Lightforce nor Mr Fitzgerald had any experience in erecting these arrays. Mr Fitzgerald’s experience in operating the machine related to Lightforce’s key business of the erection of roadside barriers.

On 17 February 2018, Mr Fitzgerald was assigned to a “combiner box piling” task, which involved the pile driving of long piers into the ground so electrical combiner boxes could be installed amongst the solar panel arrays. Pile driving of these piers was not within the scope of the original “wet hire” contract nor a subsequent contract between Lightforce and Catcon which provided for the machine and its operator to undertake “remedial work”.

Mr Fitzgerald was not familiar with working with piers of the length required to be driven for the combiner boxes and he had significant difficulties in pile driving them. Expert evidence also established that the length of piers assigned to Mr Fitzgerald to pile drive were too long to be accommodated by the machine he was operating.

As a result, Mr Fitzgerald determined, together with an offsider that he was working with, to conduct modifications to the pile driver machine. A Catcon supervisor was present for at least part of the modification discussions between Mr Fitzgerald and the offsider. The Catcon supervisor was aware of at least some of the proposed modifications, and they were undertaken with his knowledge.

The modifications to the pile driver machine caused its hammer to jam. Whilst trying to determine the source of the jamming, Mr Fitzgerald was sadly crushed to death by the hammer after it became free and dropped onto him.

Decision

Charges were brought by SafeWork SA against both Lightforce and Catcon pursuant to section 32 of the WHS Act for failing to comply with a work health and safety duty, exposing an individual to the risk of death or serious injury.

Both Lightforce and Catcon were considered the person conducting the business or undertaking (PCBU) for the purposes of section 19 of the WHS Act. As such both entities had the primary duty of care. Both Lightforce and Catcon pleaded guilty to, and were accordingly convicted of, one count of breaching their work health and safety duty.

Catcon pleaded guilty to breaching its primary duty of care “to ensure, so far as was reasonably practicable, the safety of workers whose activities in carrying out work were influenced or directed by it while they were at work in the business.” Catcon’s failure to do so directly resulted in Mr Fitzgerald’s death as described above.

Lightforce also pleaded guilty to breaching its primary duty of care as a PCBU. However, Lightforce breached this duty in two ways. Firstly, by failing to require Mr Fitzgerald to prepare a Job Safety Analysis prior to the undertaking of a new task at the worksite that was checked by Lightforce prior to the task commencing. Secondly, Lightforce breached its work health and safety duty by failing to prepare a safe operating procedure that defined the tasks that Mr Fitzgerald was permitted to undertake at Bungala and that prohibited the performance of any other tasks without Lightforce’s prior authorisation.

Following the tragedy, Lightforce did make efforts to make amends with the family in any way that it could. It arranged and paid for Mr Fitzgerald’s family to fly from Sydney to Perth to be with the family following their father’s death. They also funded the funeral and arranged for Mrs Fitzgerald to obtain legal advice, so she was aware of her entitlements and of any potential claims she had against them. This was a relevant consideration taken into account by the Tribunal.

Lightforce has also decided, since the tragedy, to concentrate on its core business, the erection of roadside barriers, and has not returned to solar installation work.

Nonetheless, Lightforce and Catcon were fined $300,000 and $450,000 respectively, following a 40% discount for their early guilty pleas.

Take Home Messages

This decision serves as a reminder that companies need to ensure that they maintain a safe working environment for all that enter their workplace. This is the case regardless of whether the employee is employed to work on-site or contracted out to work off-site, as if something goes wrong, the company can still be held responsible.

This decision is an example of one such case where both employer and principal were held responsible following a workplace tragedy, with both Lightforce and Catcon being convicted of breaching their work health and safety duties as a PCBU. Failure to ensure a safe work environment can result in the worst outcome, being the passing of a worker.

For more specific information on any of the material contained in this article please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.