SafeWork NSW v PCW Constructions Pty Ltd & Peter James Woodhouse

SafeWork NSW v PCW Constructions Pty Ltd & Peter James Woodhouse - [2022] NSWDC 290 - NSWDC 2022 case summary — Zoe

[5]

The incident

PCW was contracted by Davimac Trading Pty Ltd (Davimac) to perform roofing work at Davimac's premises on Wellington Street, Molong (the site). The work involved removing the current roof sheets, installing insulation and mesh, and then reinstalling the existing roof sheets on one of the sheds at the site (the shed).
On 13 June 2020, Mr Webb, Mr Gibson and Mr Morley Clarke of PCW were working at the site. Mr Gibson was the nominated supervisor.
The roof of the shed was 9 metres above the ground at its highest point. The roof of the spray booth in the shed had four skylights constructed of Alysnite or Perspex material. They were approximately 7 metres from the ground and measured approximately 900 mm by 2400 mm.
The materials required to complete the task including the roof sarking paper, the mesh and a scissor lift, were already on site when Mr Webb and Mr Gibson arrived at about 7.30am.
Mr Woodhouse was present in the morning but left the site at some point during the day to attend to other tasks.
Before the work commenced, Mr Woodhouse provided a toolbox talk to Mr Webb and Mr Gibson, during which he provided instructions to begin from the internal wall. He did not instruct Mr Webb and Mr Gibson on how to access the roof.
Mr Morley-Clarke was contacted by Mr Gibson at some point in the morning and was asked to attend the site to assist Mr Gibson and Mr Webb in carrying out the work. Mr Morley-Clarke arrived approximately before 12pm. He was not present for Mr Woodhouse's toolbox talk.
When Morley-Clarke arrived on site, Mr Gibson and Mr Webb were still working on the ground organising materials. He read the Safe Work Method Statement (SWMS) and signed it.
Mr Morley-Clarke's role on the day involved working on the ground to prepare the materials for Mr Gibson and Mr Webb. This included cutting the roof sarking paper and mesh to the appropriate size. At no point did Mr Morley-Clarke access the roof.
Mr Webb accessed the roof through a scissor lift or a forklift with a man bucket. The forklift was owned by Davimac and a Davimac employee had offered its use to Mr Gibson, who accepted. The forklift was locked inside the shed. A Davimac employee assisted the PCW workers to start the forklift. The scissor lift was located outside of the shed and was operated by Mr Gibson or Mr Morley-Clarke.
While undertaking the roofing work, Mr Gibson and Mr Webb were not wearing a fall protection device such as a harness. No fall prevention measures were in place.
Mr Gibson remained on the roof for a short time to demonstrate to Mr Webb how to complete the task. Mr Webb remained on the roof while Mr Gibson performed work on the ground. At some point, Mr Gibson was in the bucket of the forklift tying off the mesh. As the roof was pitched, there was a box gutter two metres away from the edge where Mr Webb performed his work.
While Mr Gibson was tying off the mesh from the bucket of the forklift, Mr Webb was on the roof and continued to remove the roof sheets by unscrewing them. The roof sheets were over a metre long.
While pulling off one of the roof sheets, Mr Webb took a step backwards and fell through one of the skylights.
Mr Webb fell approximately 6.5 metres to the concrete floor below. Mr Gibson and Mr Morley-Clarke heard Mr Webb yell and immediately came to his assistance. Mr Webb was conscious but felt winded and believed his wrist was broken. Mr Morley-Clarke drove Mr Webb to the hospital in a work vehicle.
Mr Webb sustained a fractured rib, multiple pelvic fractures, and a fractured wrist as a result of the incident.

[13]

Work Health and Safety Regulation 2017

Clause 78 of the Work Health and Safety Regulation 2017 (the Regulation) specifically states that a PCBU at a workplace must manage risks to health and safety associated with a fall by a person from one level to another that is likely to cause injury to that person or any other person.
Clause 79 of the Regulation applies where it is not possible to eliminate the risk of a fall to which clause 78 applies. Clause 79(3) relevantly provides that: (3) The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by-- (a) providing a fall prevention device if it is reasonably practicable to do so, or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or (c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable. Examples : 1 Providing temporary work platforms. 2 Providing training in relation to the risks involved in working at the workplace. 3 Providing safe work procedures, safe sequencing of work, safe use of ladders, permit systems and appropriate signs. Note : A combination of the controls set out in this subclause may be used to minimise risks, so far as is practicable, if a single control is not sufficient for the purpose.
Clause 79(5) defines "fall prevention device" to include: (a) a secure fence, and (b) edge protection, and (c) working platforms, and (d) covers.
Clause 291(a) of the Regulation defines "high risk construction work" as including construction work that "involves a risk of a person falling more than 2 metres." This triggers the application of clause 299(2) of the Regulation, which requires a SWMS to: (a) identify the work that is high risk construction work, and (b) specify hazards relating to the high risk construction work and risks to health and safety associated with those hazards, and (c) describe the measures to be implemented to control the risks, and (d) describe how the control measures are to be implemented, monitored and reviewed.
PCW's SWMS was not adequate for the high-risk construction work being undertaken at the site. Mr Woodhouse did not ensure that PCW had an adequate system of work in place to eliminate or minimise the risks to health and safety arising from the roofing work.

[19]

The Affidavit of Mr Woodhouse

Mr Woodhouse was 52 years old and resided in Molong with his de facto spouse. He has five adult children, four of whom were financially dependent on him.
Mr Woodhouse deposed that the town of Molong had a very tight knit community and the injury to Mr Webb received a lot of local publicity.
Mr Woodhouse was born in Orange and attended primary school and high school there. He left school halfway through Year 11 and commenced a trade apprenticeship with Telecom. He worked for Telecom and subsequently for Telstra for 18 years. He then worked for Hutchinson Telecommunications. A lot of this work involved working at heights and supervising other trades workers. Mr Woodhouse deposed that OHS was very stringent and he became very conscious of safety in the workplace and working at heights regulations.
In 2008 Mr Woodhouse completed his Clerk of Works at Orange TAFE which permitted him to become a licensed builder. In 2008 he commenced as a sole trader under the business name PCW Constructions and then in 2013 he established PCW Constructions Pty Ltd.
In the mid-2000s, Mr Woodhouse and his family moved to Molong and Mr Woodhouse commenced working as a sales representative for Ultra Steel Sheds. He developed a good network of contacts in the local construction industry and decided to establish PCW. Mr Woodhouse slowly built up the business through word-of-mouth referrals and by developing his reputation through jobs. Between 2008 and 2015, the business grew from two employees to nine employees. This remained the situation until about 2020 when Mr Woodhouse decided to scale back the business, largely as a result of the injury to Mr Webb.
Mr Woodhouse always sought to employ and engage workers from the Molong region to support the local community. Mr Woodhouse and his family were active and involved members of the local community and Mr Woodhouse contributed to two local clubs.
Mr Woodhouse attended the Davimac premises approximately two weeks before the incident to inspect the site, scope out the area and ascertain what work needed to be performed. During the inspection, Mr Woodhouse observed the skylights on the roof of the shed and that there was no safety mesh under the skylights and he made a mental note to be aware of this.
Mr Woodhouse deposed that he had developed a plan and strategy for the work to be performed at the site. He attended the toolbox talk conducted at the site on the morning of 13 June 2020, along with Mr Gibson and Mr Webb. He explained to them that there were skylights on the roof and told them that they needed to be aware of the skylights because there was no safety mesh under them. He said to them words to the effect of, "Guys you need to start at that end (motioning to where he wanted them to start) remove some sheets, lay down the mesh and insulation, put the sheets back on and then work towards the skylights." Mr Webb and Mr Gibson both indicated to Mr Woodhouse that they understood what he was telling them. Mr Woodhouse then had to leave the site due to personal circumstances. Mr Woodhouse deposed that had it not been for those personal circumstances, he would have remained at the site, and that he regretted immensely that he had not been on site that day as he believed his presence could have prevented the injury suffered by Mr Webb.
Mr Woodhouse deposed that Mr Webb commenced working with him as a labourer when Mr Webb was about 17 years of age. After observing Mr Webb's work ethic and attitude, Mr Woodhouse suggested that he think about enrolling in TAFE and undertaking an apprenticeship. Mr Webb took up Mr Woodhouse's suggestion and Mr Woodhouse paid for his TAFE while Mr Webb undertook a building apprenticeship with PCW. Mr Webb had approximately six months off work as a result of the injuries he sustained in the incident and was able to recover sufficiently to return to work with Mr Woodhouse. Mr Webb stayed on with PCW until Christmas 2021, when he took up an opportunity at his father-in-law's business. Mr Woodhouse and Mr Webb still have a good relationship and Mr Webb often visits Mr Woodhouse at his home.
Mr Woodhouse decided to scale back PCW as a result of Mr Webb's injuries, with the business now only involving concreting. Mr Woodhouse deposed that while the concreting process is not without risk, it is a lot less risky overall than shed construction because there is no working at heights.
Mr Woodhouse deposed that the incident had a significant and ongoing impact on him. He expressed deep remorse and regret for the injuries sustained by Mr Webb and for him not being on site on the day.
Mr Woodhouse found out about the incident through a telephone call from one of PCW's workers. Mr Woodhouse immediately called his ex-wife who was nearby and asked her to go to Molong Health Service. Mr Woodhouse drove from his rural property to the hospital but could not enter due to COVID restrictions. He subsequently learned that Mr Webb was being transported to Orange Health Service and Mr Woodhouse visited him there. Mr Woodhouse communicated with Mr Webb's mother the entire time that he was in hospital. When Mr Webb returned to work, Mr Woodhouse ensured that he was only doing jobs that he could physically do and told him to leave work early if he felt tired.
Mr Woodhouse deposed that he had provisioned for the imposition of a fine by the Court and sought to ensure that PCW had sufficient funds to satisfy a fine. This included by scaling back the business and arranging for the sale of two fully equipped work trucks and a utility vehicle owned by PCW.
Mr Woodhouse unreservedly apologised to Mr Webb, his family, the public and the Court for the incident and expressed confidence that an incident of that type would never happen again due to the changes made to PCW's system of work following the incident.

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

Parties

Cases Cited (2)

Cited By (5)