March 7, 2019 1:23 am

S Billing & Associates has successfully defended a site manager who was prosecuted by WorkSafe
for failing to take reasonable care at his workplace under the Occupational Safety and Health Act

The case, which is examined below, highlights the need for employers to:

  1. have adequate safety documentation, policies and procedures in place, and
  2. Immediately contact our crisis management team in the event of a safety incident so we can be on hand to assist.

The Magistrate’s Court of WA heard the matter in December 2018. The case received intense media scrutiny and centred around the unfortunate death of two workers on a Jaxon Construction site in East Perth in November 2015, when a pre-cast concrete panel which had been delivered to the site on a truck, tipped over and struck them. The legal defence team was engaged immediately following the accident to assist Jaxon and its managers in the process that subsequently took place.

A detailed WorkSafe investigation was undertaken following the incident. The construction site manager, David Ferguson, was subsequently charged with breaching his duty to take reasonable care by failing to ensure that an exclusion zone restricting access to the footpath adjacent to the delivery area for the construction site was set up at the time of the incident, and secondly, that he did not ensure the removal of the pre-cast panels was done in such as way to ensure even weight distribution on the truck to alleviate any risk of the panels falling from it.

Mr Ferguson was charged under Part III of the OSH Act requiring that not only employers, but also employees, self employed persons and contractors maintain a safe working environment and take reasonable care to ensure their own safety and to avoid adversely affecting the safety of others by their own acts or omissions. The duties owed by employers are quite broad, and different to duties owed by employees.

The Prosecutors alleged that Mr Ferguson, as site manager, had the overall responsibility for the site. He was obliged to ensure that the subcontractors performed their role safely and appropriately and without risk to others on site and that included ensuring that any exclusion zones were obeyed even if the company had engaged a subcontractor to set one up.

It was further argued by the Prosecution that Mr Ferguson was the person who determined the sequence of removal of the concrete panels from the truck which was a flawed decision which led to the load tipping and caused the death of the workers.

The defence team successfully argued and led evidence during the trial, that Mr Ferguson could not have reasonably been expected to have done more than he did, when considering the following:

  • – his vast duties and role of site manager
  • – the roles and duties of other managers who worked for Jaxon who also had safety responsibilities
  • – Mr Ferguson’s owns expertise, and
  • – the expertise and experience of subcontractors employed by Jaxon, particularly those who were engaged to set up the exclusion zones and load and unload the panels from the truck.

The legal test here was what was ‘reasonably forseeable’. In other words, what was the likelihood and obviousness of the risk, the magnitude of the harm that could be caused by the risk, balanced against the costs and difficulty of removing that risk. The defence team successfully argued and brought evidence to establish that Jaxon had detailed safety and supervision procedures and that Mr Ferguson implemented these at a site and managerial level. It was therefore difficult to foresee that the specialist subcontractors engaged on that day would contravene the safety measures they were required to uphold as to require a safeguard against such a failure.

Magistrate Ayling was ultimately not satisfied that the prosecution had established beyond a reasonable doubt that Mr Ferguson had failed to take reasonable care, and she therefore acquitted Mr Ferguson. Importantly, she commented that where an employer engages a specialist contractor outside of the employer’s area of expertise and the accused employee is tasked with overseeing the performance of that work, then it is unfair to expect an employee to guard against that risk to other employees which fell within the specialist work to be performed by that contractor and being outside his or her expertise. It was not reasonable to expect Mr Ferguson to ‘micro-manage or second guess’ the performance of the specialist subcontractor’s work, when there was no reason to suspect substandard work.

The case highlights the need for employers to have their policies and procedures on safety, as well as job description forms for their workplace regularly reviewed as they need to ensure they contain adequate provisions to protect its interests and they also need to delineate subcontractors’ duties and responsibilities.

It is also important for employers to be mindful of ensuring that they meet their own obligations under the OSH Act, but also that their employees are adequately trained and are aware of their own personal obligations.
S Billing & Associates is well placed to assist employers with the above to ensure employers are in an optimal position in the unfortunate event your business is involved in a serious workplace safety incident. It is also important to contact our crisis management response team on 0419 859 314 immediately following an incident, so we can then arrange to mobilise on site and help your business and management navigate the process.

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