SafeWork NSW v Freyssinet Australia Pty Ltd [2017] NSWDC 290

SafeWork NSW v Freyssinet Australia Pty Ltd [2017] NSWDC 290

Freyssinet had a health and safety duty to its workers and failed to comply with it. The stairway had a large unprotected gap below the handrail on an exposed edge, creating a foreseeable risk of a worker falling more than three metres and suffering death or serious injury. Freyssinet knew or ought to have known of fall-from-height risks and of the inadequate guarding, and it was reasonably practicable for it to identify the inadequate guard-railing, request Karimbla to install an intermediate rail or other suitable guarding, and instruct its workers not to use the stairway until the risk was removed or minimised. Those failures exposed Mr Felemi to a risk of death or serious injury.

Jurisdiction
Australia
Judgment Date
27 October 2017
Procedural Posture
Criminal Prosecution for an Offence Under S 32 of the Work Health and Safety Act 2011 / Trial on Liability After Plea of Not Guilty; Matter to Be Listed for Sentence
Outcome
Freyssinet Australia Pty Ltd found guilty of the offence.
Legal Topics
['category 2 Offence' 'person Conducting a Business or Undertaking' 'construction Site Safety' 'fall From Height' 'reasonably Practicable Measures' 'edge Protection and Guard Railing' 'safe Access and Egress']
['criminal Law' 'work Health and Safety'] ['category 2 Offence' 'person Conducting a Business or Undertaking' 'construction Site Safety' 'fall From Height' 'reasonably Practicable Measures' 'edge Protection and Guard Railing' 'safe Access and Egress']

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Procedural Posture

Criminal Prosecution for an Offence Under S 32 of the Work Health and Safety Act 2011 / Trial on Liability After Plea of Not Guilty; Matter to Be Listed for Sentence

Legal Issues

  1. 1 ['Whether Freyssinet Australia Pty Ltd failed to comply with its health and safety duty under s 19 of the Work Health and Safety Act 2011.' 'Whether the failure exposed Mr Oketi Felemi to a risk of death or serious injury within s 32 of the Work Health and Safety Act 2011.' 'Whether there was a foreseeable risk of workers suffering death or serious injury by falling through the unprotected gap between the edge of the stairway and the handrail.' 'Whether reasonably practicable measures available to Freyssinet included identifying inadequate guard-railing, requesting Karimbla to install adequate guard-railing, and instructing workers not to use the stairway until suitable guarding was installed.']

Ratio Decidendi

Freyssinet had a health and safety duty to its workers and failed to comply with it. The stairway had a large unprotected gap below the handrail on an exposed edge, creating a foreseeable risk of a worker falling more than three metres and suffering death or serious injury. Freyssinet knew or ought to have known of fall-from-height risks and of the inadequate guarding, and it was reasonably practicable for it to identify the inadequate guard-railing, request Karimbla to install an intermediate rail or other suitable guarding, and instruct its workers not to use the stairway until the risk was removed or minimised. Those failures exposed Mr Felemi to a risk of death or serious injury.

Court Disposition

Freyssinet Australia Pty Ltd found guilty of the offence.

Orders

  • ['The elements of the offence have been proved beyond reasonable doubt against Freyssinet Australia Pty Ltd.' 'Freyssinet Australia Pty Ltd is found guilty of the offence.' 'The matter will be listed for sentence on a date convenient to the parties.']