//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
austlii:sa/SAIRC/2009/75
defendant. Conviction recorded; fine of $25,000 imposed; compensation of $10,000 awarded to Carol Lambe; court fees, victims of crime levy and legal costs also ordered
A construction company was fined $25,000 after a young worker fell through an unguarded stairwell void and suffered catastrophic permanent injuries. The company had removed safety barriers to clean the area, then directed the employee to continue working near the open void without protection. The court found this was a deliberate acceptance of unnecessary risk. The worker's mother was awarded $10,000 compensation for the extensive care she provided her son. The penalty was reduced by 20% because the company pleaded guilty early and showed contrition, but the court emphasised that general deterrence required a substantial fine to discourage similar risk-taking by employers.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1
On 28 March 2007 Jay Lambe suffered devastating injuries after falling three metres through an unguarded stairwell void in a house under construction. Mr Lambe was employed as a carpenter's assistant by Conlay Constructions Pty Ltd ("Conlay"), which had been engaged to build the house's timber frame.
6 cited instruments linked from this judgment.
2
Following an investigation by SafeWork SA, Conlay was charged with a breach of s 19(1) of the Occupational Health Safety and Welfare Act 1986. Conlay was alleged to have failed to ensure so far as was reasonably practicable that its employee Mr Lambe, was safe from injury and risks to health while at work. Conlay was said to have failed to comply with its occupational health and safety obligations to its employee by failing to provide and maintain a safe work environment that should have included adequate fall protection to minimise the risk of Mr Lambe falling from heights while at work.
3
At the earliest available opportunity, Conlay indicated its preparedness to enter a guilty plea to this charge. It is now to be sentenced.
4
Mr Lambe was then 23 years old and had worked for Conlay for about five years in all. He was described by Nathan Conlay, the owner of Conlay, as being a very capable and experienced worker.
5
All of the first fix carpentry work had nearly been completed when Mr Lambe was working in the loft area. Until shortly before the incident the void to the stairwell space, which was "L" shaped and measured about 5 x 2 metres on its longest sides, had been protected by bracing used to support the wall frames, and by planking. This had been removed in anticipation that the only remaining work to be performed was sweeping debris from the floor area into the void without obstruction.
6
Once the sweeping work had been completed a temporary hand rail was to be made after which there was no further need for any employee to be in the loft area. Once Conlay finished its work on the site it planned to contact its contractor, the Hickinbotham Group, which would then deliver and install on site a prefabricated stairwell void cover.
7
On this occasion however, Mr Lambe noticed that some of the roofing rafters had not been properly fixed to the top plate of the loft's wall frames. After some discussion with Mr Conlay, Mr Lambe was given a direction to fix further nails with a nail gun from the underside of the top plate into the rafters. All this was to take place whilst the stairwell void was completely unprotected.
8
Mr Lambe proceeded to perform this work, which necessarily involved him focussing on the top edge of the loft's wall frames. There was no consideration given to providing any temporary barrier to the void and Mr Lambe was directed to perform the work alone.
9
In the course of doing that work he fell through the void and landed on the concrete slab below. It is estimated that he fell about ten minutes after removing the temporary bracing and planking barrier.
10
The offence against the Act is based upon Conlay's failure to provide and maintain adequate fall protection whilst all work was being performed in the loft area. This includes both the removal of the protections for the purpose of cleaning the loft, together with the unusual task on this day of strengthening the join between the rafters and the loft's.
11
It was foreseeable that a risk of injury from falling was created as soon as the temporary barriers had been removed and while an employee was still expected to perform some activities in the loft area.
12
The continuation of work in the loft after the removal of the temporary barriers involved the deliberate acceptance of unnecessary risk, in circumstances where it was reasonably practicable to avoid that risk.
13
The provision of adequate protection against falls is part of an employer's obligation to provide a safe working environment, as a means of ensuring the safety of employees at work.
14
This obligation of s 19(1) is also reflected in the Regulations to the Act. In particular Regulation 2.13.1 sets out an extensive scheme directed towards the prevention of falls from height. While the Regulation does not prescribe any specific height above which any particular precaution must be taken, it is obvious that any fall from about two metres and above has the potential to cause serious injuries. The Regulations make many sensible suggestions as to how falls can be safeguarded against by measures such as the use of: secure fencing; safe working platforms; scaffolding; or fall arresting devices such as a safety harness or pole safety belt.
15
In any event Conlay was aware of the risk of injury from falls from heights hence the system it did have of placing a temporary barrier over the void and only removing it for a short period for cleaning purposes prior to a temporary handrail being erected.
16
Despite this awareness, Conlay accepted that its employee would be at risk of serious injury from the unprotected void for a brief stage of the work.
17
Regrettably for Mr Lambe that risk of injury eventuated, with Mr Lambe and his family having to wear the personal cost of his employer's default for the rest of their lives.
18
Mr Lambe was immediately rendered unconscious by the head injury suffered by him. He was subsequently diagnosed with multiple skull factures, subarachnoid haemorrhaging and a fractured C4 vertebrae. Mr Lambe suffered significant damage to his brain that resulted in him being non responsive for several months and subsequently left him with severe physical, sensory and cognitive impairment. He also suffers profound deafness, reduced vision, and impaired motor skills such that he needs a walker. As a result he can no longer live independently, will never work again, cannot drive and has limited ability to interact with other people. He requires 24 hour care. Mr Lambe is aware of many of his limitations and losses, and unsurprisingly is also being treated for depression. A medical report from the Hampstead Rehabilitation Centre describes out in detail the course of Mr Lambe's initial treatment and recovery, and summarises a wide range of his ongoing impairments.
19
Mr Lambe was cared for by his mother Carol Lambe at home for a lengthy period after his eventual discharge from the Royal Adelaide Hospital and the Hampstead Rehabilitation Centre. Ms Lambe has provided extensive personal care to him over that period and continues to do so to a lesser degree while Mr Lambe is a resident of a supported accommodation facility.
20
A Victim Impact Statement has been provided by Carol Lambe and by Mr Lambe's younger brother Simon Lambe. The Statements provide significant detail of the disastrous impact of the injuries upon Mr Lambe, his mother and brother, and of Mr Lambe's resulting need for care. The Statements detail the nature and extent of the considerable gratuitous services provided by Carol Lambe to her son. Ms Lambe has had to reduce her own paid employment as a professional carer in order to have sufficient time to care for her son. As a result Ms Lambe has made application for compensation pursuant to s 53 of the Criminal Law (Sentencing) Act 1988 in respect of her losses.
21
Ms Lambe also detailed considerable travel and parking expenses that she has needed to incur since March 2007 and which as of August 2009 had not been reimbursed by WorkCover notwithstanding her clear entitlement under s 32 of the Workers Rehabilitation and Compensation Act 1986. Nor had Mr Lambe by then received any lump sum compensation under s 43 of that Act although he clearly has a substantial entitlement. To the extent that Ms Lambe has sought compensation in respect of any losses that are covered by the workers compensation law I have excluded them from consideration. In respect of her lost income and out of pocket expenses she has incurred as a result of providing voluntary care services for her son it is my view she is entitled to an award of compensation under s 53. This course of action was not opposed by the defendant on the basis that any award of compensation be deducted from the monetary penalty that would otherwise have been imposed on the defendant. In my view Ms Lambe is entitled to an award of compensation based on the evidence before the court irrespective of how that may impact upon the monetary penalty to be imposed on Conlay.
22
When assessing Ms Lambe's compensation I bear in mind that under s 58 of the Civil Liability Act 1936 the awarding of damages for gratuitous services is limited. Ms Lambe is not entitled to be simply reimbursed her resulting wage loss but instead is to be compensated for the notional value or cost of the services she has provided to her son to date and is likely to provide in the future. In making this assessment there is no doubt she has provided very extensive care to her son in circumstances that would otherwise have resulted in increased costs to the WorkCover system or to the State. There is also no doubt the services were reasonably necessary. Based on the severe and extensive nature of Mr Lambe's permanent disabilities and her commitment to do what ever is within her power to assist him, it is likely that Ms Lambe will continue to provide voluntary care services for as long as she is able.
23
Based upon the whole of the evidence relevant to the question of compensation I award Carol Lambe compensation in the sum of $10,000.
24
Conlay Constructions Pty Ltd was established about four years prior to the incident by Nathan Conlay now aged 35 years. The defendant's business is first fix carpentry and joinery on domestic dwellings, primarily under contract for the Hickinbotham Group. Conlay had eight employees at the time of the incident.
25
Mr Conlay was personally shocked and emotionally upset at the injuries suffered by his employee. He recognises the great tragedy this has caused to Mr Lambe and his family. He has offered some level of personal support.
26
Conlay's response to the incident included Mr Conlay undertaking the Responsible Officer's OHS Course, which I note is a mandatory requirement within three months of being appointed a Responsible Officer according to s 61(2a) of the Act. In addition all employees of the defendant company have undergone some form of occupational health and safety training. Conlay also engaged a private organisation called EQAS which provided a "very thorough OHS program". Mr Conlay is now also said to be vigilant regarding work at heights.
27
When assessing the effectiveness of the subsequent changes in terms of their mitigatory potential, I note that no additional precautions such as the use of safety harnesses have been adopted for work on constructing roofs. Accordingly I am unable to conclude that the defendant is unlikely to again breach the Act. I do accept that Conlay through its principal has a subjective commitment to maintain a high standard of occupational health and safety. However a good intention is not sufficient to ensure the safety of employees.
28
When assessing the objective seriousness of this offence I take into account Conlay's practice of protecting the stairwell void during the construction phase and again after the completion of the sweeping phase. The unsafe work environment in respect of the loft area existed for a brief period of time only. These circumstances distinguish this case from many others where no protective measures are adopted during the construction phase.
29
Despite the temporary nature of the unsafe working environment, the risk posed by a fall through the unguarded void was likely to be associated with extremely serious consequences. It is clearly foreseeable that an injury of the nature suffered by Mr Lambe, or a fatality, could result.
30
A consideration of the need for general deterrence of risk taking by employers who operate at heights requires a substantial penalty to be imposed.
31
The penalty is to be moderated by personal factors such as the relatively modest size of Conlay's business and by consideration of some of the measures it took after the event.
32
Next I consider whether the award of compensation ought to be deducted in whole or in part from the monetary penalty I propose to impose. In this regard I note an absence of any evidence of direct financial support from Conlay to Mr Lambe or to his mother. Accordingly in my view it is not appropriate to notionally deduct the award of compensation from the monetary penalty in whole. However, having regard to the total of the proposed monetary penalty and compensation it is my opinion that justice would be best served by the defendant being required to pay one half of the compensation with the other half being factored into the penalty.
33
The monetary penalty to be imposed upon the defendant is therefore arrived at by starting at a fine of $37,500. Next a reduction is to be afforded to Conlay on account of its early guilty plea, cooperation and expression of contrition. For these factors I will allow a 20% reduction. This results in the notional fine being reduced to $30,000, which after deduction of one half of the compensation results in a fine of $25,000.
34
In addition I record a conviction against Conlay Constructions Pty Ltd.
35
In addition the following court fee, victims of crime levy and legal costs are to be paid.
Hillman
Conlay Constructions Pty Ltd [2009] SAIRC 75
Conviction recorded; fine of $25,000 imposed; compensation of $10,000 awarded to Carol Lambe; court fees, victims of crime levy and legal costs also ordered