A company director on Queensland’s Sunshine Coast has been sentenced to a year in prison and his company fined $1 million in the state’s first category 1 prosecution under the Work Health and Safety Act 2011.

The category 1 charge of reckless conduct related to a 2014 fatality when 62-year-old roofer Whareheepa Te Amo fell almost six meters to his death while working on an unprotected roof edge.

This was the first charge of reckless conduct to be successfully tested at trial in any Australian state or territory working under similar work health and safety legislation.

The Maroochydore District Court heard company director Gary Lavin had been motivated by money when he made the decision not to install edge protection on the roof.

Lavin was convicted in a majority verdict by the jury, which was unable to reach a decision on similar charges brought against Lavin’s brother and his company.

Multi-Run Roofing was engaged by Lavin’s brother’s company, the principal contractor, to re-roof large sheds at old brickworks west of Noosa, and Te Amo was one of five workers subsequently engaged by Multi-Run to undertake the work.

The court heard that the defendants, without reasonable excuse, omitted to ensure edge protection was installed, exposing individuals to the risk of death or serious injury.

The defendants were alleged to have been reckless to this risk, and it was not in dispute that the defendants each owed a health and safety duty and that each had engaged in conduct in the form of omitting to ensure that edge protection was installed.

Evidence was heard from various witnesses, including roofers and workers who had been at the site, as well as from Queensland Police Service and Workplace Health and Safety Queensland.

Other roofers described discussions with the sub-contractor alleging he had said (in effect) that it would be too expensive to install edge protection.

Instead, as part of the task, one worker would be positioned near the edge of the roof to straighten the roofing sheets. This was the work being carried out on the day by the fatally injured man.

A method was adopted by the roofers (with the knowledge of the defendants) where the rails of scissor lifts were used as a barrier alongside the roof edge, with the man working near the edge to wear a safety harness. At the time of his fall, the worker apparently tripped or stumbled. He was not wearing a harness.

The court found that while the workers involved were competent, the risk was significant, as those working at the ‘roof edge were working with a narrow margin for error.

The method adopted also relied on the diligence of the workers, in circumstances where they were engaged in repetitive work.

Importantly, edge protection would have stopped the fall and the lack of it could have been easily addressed, given it was agreed the defendants would be paid to install it and there was edge protection on site (although there was conflicting evidence as to how much).

Despite pleading not guilty, it was accepted that the sentenced director was remorseful. None of the defendants had a record of any relevant breaches of work health and safety laws.

The court ruled that the sub-contractor be fined $1 million, to be paid within six months, with the director sentenced to 12 months’ jail, to be suspended after four months.

Source: Safety Institute of Australia, 19 February 2019