Prosecution Details

Being an employer, failed to provide and maintain, so far as was practicable a working environment in which its employees were not exposed to hazards and by that failure caused serious harm to an employee contrary to sections 19(1) and 19(7) of the Occupational Safety and Health Act 1984.

The accused carries on a building and design business. The accused agreed to perform building services involved in the alteration of a building at Ardross. Part of the building work in question was to remove a section of the western wall of the building (starting approximately 600mm above the ground, extending approximately 2550m in height and approximately 5150mm in width) so that a large window could be inserted.

The accused engaged a labourer/handyman that it had worked with previously, to, amongst other things, perform the work involved in the removal of the large section of the wall where the window was to be inserted. The accused was aware, or ought to have been aware, that he did not have any expertise in safe methods of removal of large areas of brick walls. Pursuant to section 19(4) of the Occupational Safety and Health Act the accused was deemed to be the employer of the labourer in relation to the work.

The accused showed the labourer the area of wall that had to be removed. The accused sought advice from an engineer as to how the wall above the area to be removed was to be supported and in reliance on that advice it engaged a boilermaker-welder, to install an angle lintel along the top edge of the area to be removed to provide support to the wall remaining above. The accused did not seek advice from that engineer or any other competent person as to how the large area of wall could be removed safely. The accused did not give any direction to the labourer as to how to remove the large area of brick wall.

On about 28 February 2004 the labourer made a large horizontal cut in the exterior leaf of the wall along the top of the area to be removed (about 5.5m long) before removing several courses of bricks to facilitate installation of the lintel in the exterior leaf of the wall. The labourer also made four large vertical cuts extending from the top to the bottom of the window cavity (approximately 2.5 m long). These cuts were grouped in two pairs so as to permit the labourer to remove two columns of bricks for the purposes of installing two acro props to support the parapet section of the wall above the window cavity while works were in progress. On that same day the boilermaker-welder came to the site to install an angle lintel in the exterior wall. He was assisted by the labourer.

While he was performing that work the boilermaker-welder noticed that the wall appeared to move and he expressed his concern to a director of the accused, (who was also the accused's representative at the site) that the presence of the long vertical cuts made to facilitate installation of the acro props had created a dangerous situation in that the freestanding panel between the vertical cuts appeared unstable and could collapse while he was working on installing the lintel. The director instructed the boilermaker and the labourer to work carefully and go slowly.

Sometime between 28 February 2004 and 7 March 2004 a person unknown came onto the site and made two more long vertical cuts in the exterior leaf of the wall extending the full height of the window cavity (2.5 m); being the cuts that would ultimately become the left and right edges of the window. This created three freestanding panels of bricks in the exterior wall, each 2.5 m high and approximately 1.5-1.7m wide. The site remained in this state until Sunday 7 March 2004 when the labourer came on-site to remove the bricks. The accused wanted the brickwork removed before Monday 8 March 2004, at which time the window itself was scheduled to be installed.

On 7 March 2004 the labourer arrived at the site to complete the removal of the area of wall. Standing on a scaffold approximately 10 feet high, and commencing with the left-hand side panel, he applied a sledgehammer to the top area of the wall inside the horizontal and vertical cuts. Shortly after he had commenced doing that work the entire left-hand side panel of the wall collapsed, knocking the scaffold over. The labourer consequently fell to the ground, landing on the collapsed brickwork.

As a result of that fall the labourer sustained fractures to his pelvis and injuries to his left elbow and shoulder joints that have resulted in a permanent loss of efficient use of the pelvis and left arm above the elbow joint. The labourer's doctor has stated that he will not be able to return to his pre-injury work as a fencing contractor and labourer and will be restricted to very modified occupational duties.

It was practicable for the accused to have prevented its labourer from engaging in removal of the brickwork from the wall until measures had been taken to brace the wall so as to prevent it from collapsing into the scaffold. It would also have been practicable for the accused to have engaged a person with sufficient qualifications and expertise, such as a person or company that specialises in cutting and removing brick walls, who they could reasonably have expected would perform the work in a safe manner, or alternatively to have engaged a competent person, such as a structural engineer or a person with qualifications and/or experience in work of this type, to develop a safe method of performing this removal work and then ensuring that that method was followed by whoever it engaged to do the work.

The accused was found guilty.