Worker left brain damaged after scaffolding altered

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Worker left brain damaged after scaffolding altered

An employer has been fined $60,000 after a worker fell through a void that had its fall protection removed.

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An employer has been fined $60,000 after a worker fell through a void that had its fall protection removed.

Fell through void


Billyard Homes pleaded guilty to failing to comply with its health and safety duty as a person conducting a business or undertaking, thereby exposing a worker to a risk of serious injury or death. 

The company was principal contractor on a residential building site in West Pennant Hills. The director of the company, Arthur Billyard, was on site, or on other nearby construction sites, every day.

Billyard orally subcontracted Morabito Wall Lining Co Pty Limited, a company with which Billyard had a long-standing business arrangement. In June 2015, Morabito subcontracted plastering and gyprocking work to be carried out by Sea Chen Pty Limited, commencing work on site on 26 June 2015. A licensed scaffolder completed approved scaffolding and fall protection on the dame day and Sea Chen signed a document stating that staircase barriers were in place and the scaffolding was in good condition. 

At some point between Friday 26 June 2015 and Monday 29 June 2015, a set of wired-together planks covering a trapezoid-shaped void were removed creating an unguarded void without edge protection.

Yin Peng Zhang was in Australia on a student visa that allowed him to work 40 hours per fortnight. He had worked with Sea Chen in accordance with his visa requirements since January 2014. His experience working with gyprock and plaster was limited to that period. On 29 June, Zhang was doing plastering work near the unprotected edge of the void. He fell over the edge to the concrete floor 2.5 metres below.

Zhang sustained multiple injuries because of the fall, including a major traumatic frontal brain injury. At the time of the proceedings he was still unable to work or continue his studies. He had problems with memory, concentration, and simple cognitive tasks such as calculating change when shopping. He suffers headaches and pain in his neck. His speech has been affected and he struggles to express himself correctly.

Zhang stated he found himself becoming socially isolated. He said he was afraid he would not find a job and would become a burden to his family who regularly travelled to Sydney from China to look after him.

Relied on subcontractor's experience


The risk of falling from height and ensuring adequate scaffolding had been identified in a general Safety Management System (SMS), Site Safety Plan (SSP) and risk assessment, which were not site specific. A version of the risk assessment written in Chinese was shown to Zhang. Apart from this, Zhang was not provided any information or instruction on how to perform his duties safely at height.

The changes made to the scaffolding were not picked up by the director or site supervisor before Zhang began work. They were, on the day of the incident, on another property nearby.

Billyard stated it was a well-known principle of construction work that “no worker should adjust or move scaffolding other than the scaffolding company”. He said no employee or supervisor knew of or authorised the changes to the scaffolding. He said that if he or another supervisor had seen the dismantled scaffolding planks everyone would have been stopped from working on the first floor until the planks were reinstalled.

After the incident, Billyard Homes complied with an improvement notice and re-installed the dismantled scaffolding planks. Billyard said the incident caused him to think carefully about the principal contractor's responsibilities. As a result, he realised it was “not enough” to hire “reputable subcontractors” and it was necessary to ensure subcontractors understood safety issues on site, had proper safe work methods and that they were supervised to ensure they were following these methods.

Billyard has since directed his supervisors to be more proactive.

Judgment


Judge Russell found that workers such as Zhang were placed at a risk of serious injury or death and that this risk was obvious, identifiable and foreseeable.

Billyard homes had failed to ensure the codes of practice were followed. Appropriate supervision would have identified the scaffolding had been interfered with, and the cost of overcoming the risk once identified would have been small.

“A safe scaffold which appropriately protected the void was already in place, and all that was required was for the offender to attend the site for supervision purposes and check that the scaffold was still in place,” Judge Russell said.

Although the removal of the planks was an “unexpected event”, it could have been prevented; instead the company “relied upon known and trusted subcontractors to work safely”.

When sentencing, the judge considered the substantial injury, emotional harm, loss and damage caused by the event. He also considered mitigating factors such as the lack of previous convictions, the unlikeliness that the company would re-offend, the demonstrated remorse and the guilty plea. 

Billyard Homes was convicted and fined $60,000. It was also ordered to pay costs of $24,500.

SafeWork NSW v Billyard Homes Pty Ltd Limited [2017] NSWDC 336 (24 November 2017)
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