|Defendant||The Mallon Company Pty Ltd (ACN 087 995 248)|
|Section||23D(2), 19(1) & 19A(2)|
|Offence Date||20 September 2010|
|Description of Breach(es)||
Being a person who in the course of trade or business, engaged a contractor to carry out work for it, failed, so far as was practicable, and in relation to matters over which it had the capacity to exercise control, to provide and maintain a working environment in which any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned was not exposed to hazards, and by that failure caused serious harm to such a person.
In August 2010, The Mallon Company Pty Ltd (ACN 087 995 248; Mallon) was engaged to replace the roofing of the commercial premises located at 7 Ruse Street, Osborne Park (Premises).
At the rear of the Premises was a main building accommodating a workshop area (Workshop). The Workshop had a sloped saw-tooth roof constructed of asbestos sheeting.
Extending approximately 6 metres in front of the Workshop was a covered area containing storage space and also providing access to the Workshop (Frontage). The Frontage had a flat roof constructed mainly of tin sheeting, with brittle fibreglass sheeting at intervals acting as ‘skylights' (Skylights).
The roofing of the Workshop and Frontage, and particularly the Skylights, had been damaged in the intense storm that infamously passed through the Perth area on 22 March 2010. The insurer of the Premises consequently engaged Mallon to replace the roofing, including the Skylights (Re-roofing Work).
Mallon is a corporation that carries on the business of contracting for roofing work, including re-roofing, under the trading name Frontline Roofing.
Mallon does not have any employees and does not engage in any actual roofing work itself. It obtains contracts and then engages subcontractors to perform the physical work. Subcontractors supply their own workers and tools.
Michael Moore is the sole director of Mallon and is entirely responsible for Mallon's decision-making processes.
Mallon engaged a roofing company to perform the Re-roofing Work. The roofing company is a corporation that carries on the business of roofing work generally, including roof plumbing and re-roofing.
The roofing company has two directors. One of the directors is an experienced roof plumber and is also an employee of the roofing company: i.e., a working director.
Mallon further engaged Terry's Crane Hire Pty Ltd (ACN 120 000 268; Terry's) to provide a crane to land the new roofing and lift down the removed roofing as part of the Re-roofing Work. Terry's is a corporation that carries on the business of the hiring out of small cranes.
Terry's has two directors: Terry Brown and his wife. Mr Brown is experienced in all aspects of crane work and is also an employee and the general manager of Terry's, in which capacity he sometimes inspects sites at which Terry's is to perform work and/or supervises more complex work: i.e., he is a working director.
Events of 20 September 2010
The roofing company commenced the Re-roofing Work on 20 September 2010. Mallon was aware of this.
Employees of the roofing company at the premises on 20 September 2010 were the director, the director's son and two workers (worker 1 & 2).
Access to the roof of the Workshop was via the roof of the Frontage. Access to the roof of the Frontage was via a ladder supplied by the roofing company.
On the morning of 20 September 2010, before commencing work, the roofing company Employees viewed the Premises from the ground and the roof and formulated, discussed and signed off on a job hazard assessment (JHA, also known as a ‘job safety analysis', or JSA) for the Re-roofing Work, which identified the hazard presented by the damaged and brittle Skylights.
The written JSA included the following comments in relation to ‘heights; EWP' and ‘access and egress' respectively:
Damaged and rusty sheets to roof access.
Rusty sheets and damaged polycarbonate sheeting to access roof, Be aware!
In discussing the JSA, the roofing company Employees decided to address these identified hazards by walking straight ahead across the Frontage roof, directly from the ladder to the Workshop roof, avoiding the Skylights. They then commenced work by removing asbestos sheeting from the rear roof of the Workshop. This sheeting was moved to the front roof of the Workshop and wrapped in plastic to form ‘packs'.
The roofing company Employees had formed two asbestos packs when the crane, provided by Terry's, arrived at the Premises, along with dogger, aged 19, and crane operator. The dogger was an independent contractor engaged by Terry's, and the crane operator was a direct employee of Terry's.
The dogger held a licence to perform dogging work, a class of high risk work under the Occupational Safety and Health Regulations 1996 (Regulations). Dogging work includes the application of slinging techniques for the purposes of lifting a load, and directing a crane operator (via hand signals) in the movement of a load when the load is out of view of the operators. It is an offence to perform dogging work without the relevant high risk work licence.
The roofing company director spoke to the crane operator to arrange for the two asbestos ‘packs' to be lowered from the front roof of the Workshop to the skip bin at the front of the Premises.
The roofing company Employees slung the first pack and the dogger stood atop the ladder to instruct them and to guide the pack down to the skip bin. The roofing company director and his son noticed that the dogger was not wearing an asbestos mask and told him he could get one from roofing company's trailer at the front of the Premises. The dogger did so and then returned. He then guided down the two asbestos packs and a further two packs that the roofing company employees had by then prepared. He then slung a pack of new metal sheets that were to be installed in place of the removed asbestos.
The dogger ascended to the Frontage roof and guided the crane to land the new sheets on top of the purlins on the rear roof of the Workshop. He then slung a further pack of metal sheets, which the roofing company director instructed him to land beside the wall at the end of the front roof of the Workshop. The roofing company removed the existing asbestos sheeting in that area so that the dogger could do so.
The dogger was not instructed to come onto the Premises roof by anyone. However, he had to access the roof in order to guide the crane operator so as to land the new pack.
At one point, the roofing company director and his son warned the dogger to be aware of the rusty sheets and Skylights on the Frontage roof.
The dogger walked across the Frontage roof to reach the area beside the wall in order to land the new pack. In doing so, he walked across the skylight. The director and his son saw him doing so and again warned him to keep off that skylight.
The dogger landed the new pack and attempted to remove the slings. He had some difficulty doing so and at one point stepped onto the far end of the skylight. That area of the skylight collapsed below the dogger who fell to the cement floor approximately 3.3 metres below.
The dogger struck his head and neck on the cement floor. He suffered the following serious injuries as a result.
He underwent bifrontal decompressive craniectomy and required massive transfusion of blood products to control associated bleeding. He later underwent bifrontal cranioplasty.
Roofing Company's systems for the Re-roofing Work
As at 20 September 2010, there was existing safety mesh installed below the roof of the Workshop. Safety mesh provides protection against falls through roofs.
However, as at 20 September 2010, there was no safety mesh installed below the roof of the Frontage (including the Skylights).
Mallon and the roofing company had not discussed the installation of safety mesh as part of the Re-roofing Work. The roofing company had planned to install safety mesh beneath the Frontage roof after all the asbestos sheets had been removed from the Workshop roof. They had arranged for the provision of this mesh, but at the time of the dogger's fall the mesh was not on the Premises.
The roofing company had also planned to replace the Skylights after all the asbestos sheets had been removed from the Workshop roof. The polycarbonate sheeting to be used for this purpose had been ordered by the roofing company but only arrived at the Premises on 20 September 2010 after the dogger's fall. The new metal roof sheeting for the Workshop roof and for the other parts of the Frontage roof was on the Premises at the time of the fall.
By 21 September 2010, the day after the dogger's fall, the roofing company had installed safety mesh under the Frontage roof and had replaced the Skylights with the new polycarbonate sheeting.
The roofing company's subsequent invoice to Mallon for the Re-roofing Work indicated the sum of $100.00 for the supply of the safety mesh.
Prior to the dogger's fall, some of the roofing company Employees had been working on the sloped Workshop roof within 2 metres of the skylight through which the dogger ultimately fell.
Arrangements between Mallon and the roofing company
Mallon had engaged the roofing company to perform roofing work on previous occasions.
There was no written contract between Mallon and the roofing company for the Re-roofing Work. Mallon simply issued the roofing company a rudimentary plan of the roofs generally indicating the work that needed to be done, and the roofing company provided Mallon with a price list. Any other matters were arranged orally.
Any materials required for the Re-roofing Work were to be ordered by the roofing company and paid for and supplied by Mallon.
Prior to commencing the Re-roofing Work, Mr Moore and the director of the roofing company had together viewed the roofing from the roof of a neighbouring property.
Prior to commencing the Re-roofing Work, the director of the roofing company had also viewed the Skylights from the Premises roof and from below, and was aware that they were brittle, damaged, old and worn.
Both Mallon and the roofing company and Mr Moore and the director of the roofing company were aware that the Re-Roofing Work included the replacement of the damaged Skylights. They were also aware of the fall hazard posed by aged and brittle skylights such as those used in the roofing of the Frontage of the Premises, particularly when damaged.
The roofing company arranged for the supply of its own scaffold. Mallon was aware of this; the roofing company was to (and did) invoice Mallon for the supply and erection of the scaffold.
Mr Moore stated in a voluntary record of interview that he assumed that the roofing company would address the fall hazard by using this scaffold or otherwise. However, this was never specifically discussed. In fact, neither Mallon nor the roofing company raised with the other any particular safety issues involved in the Re-roofing Work prior to 20 September 2010.
Mallon had also arranged for the provision of an elevating work platform (EWP, also known as a ‘boom lift' or ‘cherry picker').
Mr Moore stated in a voluntary record of interview that he assumed that workers engaged in the Re-roofing Work would use either the scaffold or the EWP to access the roof. Again, however, this was never specifically discussed. In fact, Mallon had only arranged for the provision of the EWP to assist in the removal of an aerial that the director of the roofing company had first noticed when he went onto the neighbouring roof with Mr Moore.
Arrangements between the roofing company and Terry's
There was no contract of any kind between the roofing company and Terry's for the provision of the crane for the Re-roofing Work. The roofing company required the provision of a crane to remove and land the roof sheeting, and Mallon had accordingly engaged Terry's.
The roofing company and its director were aware that the crane would be accompanied by a dogger to sling loads and guide the crane, and that the dogger would have to work from the roof of the Premises, and access the Frontage roof, to do so. None of the roofing company Employees was a licensed dogger.
The roofing company did not discuss safety issues with Terry's, the dogger or the crane operator, other than insofar as the director of the roofing company and his son warned the dogger to stay away from the Skylights on the Frontage Roof. The roofing company did not make Terry's, the dogger or the crane operator aware of the roofing company's JSA. The roofing company did not supervise the dogger while he was on the roof of the Premises.
Arrangements between Mallon and Terry's
Mallon had engaged Terry's on previous occasions, including for the landing of material onto, and the removal of material from, roofs.
There was no written contract between Mallon and Terry's for the provision of the crane for the Re-roofing Work. Mr Moore engaged Terry's orally.
Mr Moore knew that Terry's would provide a dogger to sling loads and guide the crane, and that the dogger would likely have to work from the roof of the Premises to do so.
Neither Mallon nor Terry's raised with the other any particular safety issues involved in the Re-roofing Work.
Relationship between Terry's and the dogger
As noted, the dogger was an independent contractor engaged by Terry's. The practice of Terry's was for crane operators to be directly employed and for doggers to be engaged as necessary. The doggers were provided with equipment such as slings and chains by Terry's.
Mr Brown and Terry's were aware of the general nature of the Re-roofing Work, although Mr Brown did not personally know that the dogger had been sent as the dogger on that job. The allocation of doggers was determined by the controller for Terry's. Terry's would provide a dogger to work with a crane unless the client indicated that it had a licensed dogger available.
Neither Mr Brown nor Terry's was aware that the roofing of the Premises included the Skylights. Although Mr Brown sometimes inspected sites at which Terry's was to perform work and/or supervised difficult work, no representative of Terry's had inspected the Premises prior to 20 September 2010.
Doggers and crane operators sent to jobs by Terry's often did not know the precise nature of the work until they arrived on site.
Mr Brown stated in a voluntary record of interview that he expected the crane drivers employed by Terry's to discuss safety issues with doggers on site if necessary. However, this was not an enforced practice of Terry's. On 20 September 2011 the crane operator and the dogger did not discuss safety issues involved in the Re-roofing Work.
Following the dogger's accident (in November 2010), Terry's formally notified its doggers and crane operators that a site-specific hazard and risk assessment was to be conducted by them prior to commencing any job, and, in the case of work requiring roof access, that they were to request the JSA prepared by the roof workers at the site.
As at 20 September 2010, Terry's had not provided the dogger with instructions or training in working at heights or ensured that the dogger had otherwise received such instruction or training.
Following the dogger's accident, Terry's has provided instruction to its doggers and crane operators as to the fall hazard presented by skylights and has paid for its contracted doggers to undergo training in working at heights.
Information available prior to 20 September 2010
Since 2004 the Code of practice: Prevention of falls at workplaces (COP) has been approved pursuant to section 57 of the Act. The COP provides practical guidance on the prevention of falls on workplaces for duty-holders under the Act, particularly (for present purposes) in respect of:
Regulation 3.57 of the Regulations also provides direction on addressing the hazards posed by brittle or fragile roofing such as the Skylights.
Practicable measures that could have been taken as at 20 September 2010
As at 20 September 2010, it was reasonably practicable for Mallon to have:
1. required and/or confirmed that the roofing company had, or would have, a system of work in place that would adequately address the risk of a person falling through the Skylights, such as:
(a) not carrying out the Re-roofing Work in such a way that any person was required and/or likely to work in the vicinity of the Skylights; and/or
(b) the installation of safety mesh under the Skylights, prior to any person accessing the Frontage roof for the purposes of the Re-roofing Work; and/or
(c) the installation of scaffolding under the Skylights, prior to any person accessing the Frontage roof for the purposes of the Re-roofing Work; and/or
(d) the installation of temporary metal sheeting over the Skylights; and/or
(e) the replacement of the Skylights with new polycarbonate sheeting; and/or
2. ensured that Terry's was aware of:
(a) the existence, height and state of the Skylights; and/or
(b) the consequent risk of a person falling through the Skylights; and/or
3. required and/or confirmed that the roofing company and/or Terry's had ensured, or would ensure, that any person who might be required to access the Frontage roof for the purposes of the Re-roofing Work:
(a) was adequately trained in, and/or informed of, the risk of falling through the Skylights; and/or
(b) was adequately supervised while working on the Frontage roof.
Taking any or all of these measures would have mitigated the risk of the dogger falling through the Skylight, and consequently suffering his injuries, on 20 September 2010.
Mr Moore failed to ensure that Mallon took any or all of these measures, despite personally knowing:
The failure by Mallon to take any or all of the above measures was consequently attributable to neglect on the part of Mr Moore, or was consented to by Mr Moore.
The Accused entered a guilty plea and was convicted. The Magistrate fined the Accused $70,000 after an initial fine of $100,000 which was reduced by 25% for guilty plea and then reduced for other mitigating factors.
Costs ordered to director, Michael James Moore
|Conviction Date||03 Sep 2013|
|Court||Magistrates Court of Western Australia - Perth|