Inspector North v Smith

Judgment 1The prosecutor, Inspector Steven North of the WorkCover Authority of New South Wales, has charged the defendant, Edward John Smith, with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") and, in the alternative, with a breach of s 9 of that Act. The defendant pleaded guilty to a breach of s 9 of the Act and the prosecutor indicated that it did not intend pursuing the alternative charge under s 8(1). 2Section 9 is in the following terms: 9 Duties of self-employed persons A self-employed person must, so far as is reasonably practicable, ensure that people (other than the employees of the person) are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work. 3The charge to which the defendant pleaded guilty is that, being a self-employed person on 3 April 2008 at premises in Grafton, he failed to ensure that [P]eople, other than his employees, were not exposed to risks to their health or safety arising from the conduct of his undertaking while they were at his place of work, and in particular, Lee Michael Tapping ... . 4The particulars of the charge are: (a) The defendant is a self-employed person; (b) The defendant conducted an undertaking of the construction and stripping of steel column formwork shutters at the Site; (c) The Site was the defendant's place of work; (d) Mr Tapping was at the defendant's place of work; The particulars of the risk are that: (e) The health and safety of persons other than the defendant's employees was put at risk of injury from being struck by a component half of steel column formwork shutters whilst undertaking the task of stripping the shutters from around concrete columns at the Site. The particulars of the acts or omissions in failing to eliminate the risk are that: (f) The defendant failed to provide a safe work method statement for persons undertaking the task of stripping steel column formwork shutters around concrete columns which : (i) Detailed the method of work required to be followed for the task of stripping of the steel column formwork shutters; (ii) Required that a means of support such as the use of a minimum of 1 acro-prop or other propping device, be secured to the half of the shutter that was not attached to plant, at the commencement of the process of stripping the column, to prevent it from becoming unstable and falling during the process; (iii) Required that persons must be clear of the range (exclusion zone) in which they could be struck by a falling shutter, prior to the operator of plant commencing to lift and remove the shutter. (g) The defendant failed to provide and maintain a safe system of work in relation to the task of stripping steel column formwork shutters from around concrete columns at the Site, in that he failed to undertake measures as follows: (i) Ensuring that a means of support such an acro-prop or other propping device, be secured to the half of the shutter that was not attached to plant, at the commencement of the process of stripping the column, to prevent it from becoming unstable and falling during the process; (ii) Ensuring that all persons were clear of the exclusion zone, prior to the operator of plant commencing to lift and remove the shutter from the concrete column. (h) The defendant failed to provide information, instruction and training to persons other than his employees in respect of the process of stripping of steel column formwork shutters at the Site in that he failed to undertake measures as follows: (i) Provide task specific information to Mr Tapping in respect of the process of stripping of steel column formwork shutters; (ii) Provide a safe work method statement or Job Safety Assessment for the task of stripping of steel column formwork shutters; (iii) Provide documented, formal training to Mr Tapping in respect of the process of stripping of steel column formwork shutters and/or requested the formwork contractor at the Site to provide such training for Mr Tapping; (iv) Undertake a formal assessment of Mr Tapping's ability to safely perform the task of stripping of steel column formwork shutters; (v) Inform Mr Tapping of the risk of the unsecured shutters falling; (vi) Inform Mr Tapping that he should always use at least 1 acro-prop or other support, to support the freestanding shutter during the stripping process. (i) The defendant failed to provide supervision to Mr Tapping in relation to the task of stripping of steel column formwork shutters at the Site in that he failed to undertake measures as follows: (i) To supervise Mr Tapping during the stripping process to ensure that he used at least 1 acro-prop or other propping or securing device, to support the freestanding shutter. As a result of the defendant's failures persons who were not his employee, and in particular Lee Michael Tapping, were placed at risk of injury. As a result of the defendant's failures a person who was not his employee, and in particular Lee Michael Tapping, suffered fatal injuries. 5For the prosecutor, there was tendered into evidence an agreed statement of facts and supporting documentation including factual inspection reports, photographs and a Safe Work Method Statement worksheet. 6The agreed statement of facts is in the following terms: