Recent case confirms designers, D&C contractors and engineers have WH&S duties when preparing designs

Under Australia’s work health and safety laws, all persons conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of their workers and other persons.

This duty effectively means that all companies, and all “officers” of the company, must do everything that is reasonably practicable to ensure that workers and other persons are safe.

Additionally, if you design any plant, substance or structure as part of your business or undertaking, you must:

  1. ensure that the plant, substance or structure is designed without risk to health and safety;
  2. carry out all necessary calculations, analyses, testing and examinations to ensure that the designed plant, substance or structure is designed without risk to health and safety;
  3. give “adequate information” to each person who is provided with the design to give effect to the design, which includes:
    1. each purpose for which the plant, substance or structure was designed;
    2. the results of any calculations, analysis, testing and examinations completed; and
    3. any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed.
  4. comply with the “Safe Design of Structures” Code of Practice (which can be accessed here) or provide a standard of health and safety that is equal to or higher than the standard required under that code, if the business or undertaking is being conducted in Queensland.

A failure to comply with either of the above constitutes a breach of a work health and safety duty and could result in significant fines and/or imprisonment for the officers of your company, depending on the seriousness of the breach.

The potential for charges to be laid and fines imposed for breaching design related health and safety duties was recently considered and confirmed when Ranjan Fernando Consulting Engineers Pty Ltd (RFC Engineers) and its director, were both convicted and fined for breaching design related work health and safety duties.

In that case, RFC Engineers certified structural drawings and calculations for the construction of a two-level underground carpark, which failed to include an appropriate retention system for the excavation work. After heavy rain, the corner of the property collapsed, leaving two neighbouring townhouses teetering on the edge of a 15m drop and forcing the evacuation of tenants.

Last week, RFC Engineers and its director were both convicted and fined for breaching work health and safety duties regarding design.

WorkSafe Executive Director of Health and Safety Julie Nielsen said that whilst no one was on site at the time and no one was injured:

“the collapse could have had catastrophic consequences for workers or for members of the public in the immediate vicinity…it’s clear this company and its director should have been aware both of the risk of collapse and the safety measures that would eliminate or reduce that risk.”

RFC Engineers was fined $240,000 and its director was separately fined $60,000.

If you have any questions in relation to your work health and safety duties or if there is a work health and safety incident at your workplace, please contact the WH&S team at CDI Lawyers.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader’s specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed. 

Key contacts:

Jay Hatten – Senior Associate
Christopher Rowden – Principal


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