Plaintiff v First Defendant

Plaintiff v First Defendant - [2019] VSC 786 - VSC 2019 case summary — Zoe

[22]

Industrial safety net, catch platform or safety harness system (other than a travel restraint system).

...

industrial rope access system means a system designed for the purpose of performing work on a building or structure by a person and consists of -

(a) equipment that enables a person to manually raise or lower himself or herself in a harness or seat supported by one or more fibre ropes; and

(b) equipment used to anchor the ropes;

...

passive fall prevention device means material or equipment, or a combination of material and equipment, that is designed for the purpose of preventing a fall, and that, after initial installation, does not require any ongoing adjustment, alteration or operation by any person to ensure the integrity of the device to perform its function;

Example

Temporary work platform, roof safety mesh or guard railing.

...

task, in Part 3.3 (Prevention of Falls), includes moving to and from a task;

...

temporary work platform means -

(a) a fixed, mobile or suspended scaffold; or

(b) an elevating work platform; or

(c) a masked climbing work platform; or

(d) a work box supported and suspended by a crane, hoist, forklift truck or other form of mechanical plant; or

(e) building maintenance equipment, including a building maintenance unit; or

(f) a portable or mobile fabricated platform; or

(g) any other temporary platform that provides a working area for the duration of work performed at height and that is designed to prevent a fall;

...

travel restraint system means equipment that is worn by or attached to a person and is designed for the purpose of physically restraining a person from reaching an edge or elevated surface from which he or she may fall;

Example

A system in which a harness or belt is attached to one or more lanyards, each attached in turn to a static line or anchorage point.

...

work positioning system means -

(a) an industrial rope access system; or

(b) a travel restraint system; or

(c) any other equipment, other than a temporary work platform, that enables a person to be positioned and safely supported at a work location for the duration of the task being undertaken at height.

...

1.1.7 Act compliance notes

If a note at the foot of a provision of these Regulations states 'Act compliance' followed by a reference to a section number, the regulation provision sets out the way in which a person's duty or obligation under that section of the Act is to be performed in relation to the matters and to the extent set out in the regulation provision.

Note

A failure to comply with a duty or obligation under a section of the Act referred to in an 'Act compliance' note is an offence to which a penalty applies.

...

2.1.1 Proper installation, use and maintenance of risk control measures

(1) A person who is required by these Regulations to use any particular measure to control risk must ensure that the measure is properly installed (if applicable), used and maintained.

Note

Act compliance - sections 21, 22, 23, 24, 26, 29, 30 and 31 (see regulation 1.1.7).

...

2.1.2 Provision of information, instruction and training

(1) If these Regulations require an employer to control any particular risk, the employer must provide each employee of the employer who may be exposed to the risk with sufficient information, instruction and training in relation to the following matters as are necessary to enable the employee to perform his or her work in a manner that is safe and without risks to health -

(a) the nature of the hazard giving rise to the risk; and

(b) the need for, and the proper use and maintenance of, measures to control the risk.

Notes

1 Act compliance - section 21 (see regulation 1.1.7).

[32]

(5) If it is not reasonably practicable to comply with subregulations (1), (2), (3) and (4), or only part of a task may be undertaken in accordance with those subregulations, and a risk of a fall remains, the employer must reduce the risk, so far as is reasonably practicable, by ensuring that -

(a) a fixed or portable ladder is used in accordance with regulation 3.3.5 ; or

(b) an administrative control is used.

Note

Act compliance - section 21 (see regulation 1.1.7).

(6) In this regulation, solid construction means an area that has-

(a) a surface that is structurally capable of supporting people, material and any other loads intended to be applied to it; and

(b) barriers around its perimeter and any open penetrations to prevent a fall from the area; and

(c) an even and readily negotiable surface and gradient; and

(d) a safe means of access and egress.

3.3.5 Use of ladder as a control measure

An employer must ensure that a fixed or portable ladder used in accordance with regulation 3.3.4 to control the risk of a fall -

(a) is fit for the purpose; and

(b) is appropriate for the duration of the task; and

(c) is set up in a correct manner.

3.3.6 Use of administrative control only

(1) If an employer uses only an administrative control in accordance with regulation 3.3.4 to control the risk of a fall, the employer must, before the task is undertaken, record -

(a) a description of the administrative control used; and

(b) a description of the task to which the administrative control relates.

Penalty: 60 penalty units for a natural person;

300 penalty units for a body corporate.

(2) In complying with subregulation (1), an employer may make a generic record in respect of a task to which an administrative control relates if the task will be undertaken in the same or similar circumstances at more than one workplace or at more than one work area within a workplace.

(3) The employer must retain a record made under this regulation for the period during which the task to which the administrative control relates is being undertaken.

Penalty: 60 penalty units for a natural person;

300 penalty units for a body corporate.

(4) The preparation of a safe work method statement in accordance with regulation 5.1.9 is to be taken to be compliance with subregulation (1).

[100]

66 However, a certain WorkSafe Code of Practice that was approved by the relevant Victorian Minister well before the making of the (2007) Fall Prevention Regulations, and a certain judgment of the Court of Appeal given in 2006 that refers to that Code of Practice, may both be thought to assist the first defendant's construction of the (2007) regulations. In R v Commercial Construction Group Pty Ltd,[63] a builder's labourer had been injured when he fell through a hole in a roof in May 2002. The employer was convicted under the Occupational Health and Safety Act 1985 of contravening its general safety duties under that Act. It appealed unsuccessfully to the Court of Appeal. The Court said that the content of the employer's duty had been 'crystal clear' as a result of the Code of Practice (No 10) - Safe Work in Roofs, which had been approved by the Minister under s 55(1) of the 1985 Act 'for the purposes of providing practical guidance to employers' and which had been in operation in 2002 at the time of the accident.[64] The Code had prescribed that precautions such as safety mesh and fall arrest systems should be used or considered wherever work was to be carried out within 2 metres of any edge on a new or existing roof 'from which any person could fall a distance of 1.8 metres or more'.[65] The Court said that, because of the prescription in the Code of Practice, precautions should have been taken for any work at 'a height of 1.8 metres or more'. The Court noted that the worker had fallen 'a distance of 3 metres'. In those circumstances, no issue arose as to the construction of the Code of Practice equivalent to the issue of construction of the (2007) Fall Prevention Regulations that arises here. However, in a footnote to the judgment, the Court of Appeal compared the prescription in the Code of Practice with the provisions of the 2003 fall prevention regulations (which had been enacted after the accident), noting that the objective of those regulations was said to be 'to prevent incidents... involving falls of more than two metres'.[66] It seems to me that the Court regarded the 'more than 2 metres' provision of the 2003 regulations as being similar to the corresponding provision in the Code of Practice, which in turn referred (as noted above) to a roof 'from which any person could fall a distance of 1.8 metres or more'. The language of the Code of Practice was at least highly suggestive that the relevant measurement was from the level of the roof to the level of the ground below; and it seems to me that the Court of Appeal was reading the 2003 regulations in a corresponding fashion. If that is right, then the Code of Practice or the decision of the Court of Appeal or both of them may be said to support the first defendant's construction of the (2007) Fall Prevention Regulations, given that the definition of 'fall' was unchanged between the 2003 regulations and the 2007 regulations.

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Judgment (180 paragraphs)

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Legislation Cited (10)

Cases Cited (19)