In July 2022, CDI Lawyers published an article that covered the tragic death of a worker, and serious injuries of another worker, who both became trapped when a scaffolding system collapsed on the $220 million Macquarie Park Project in New South Wales.
Our previous article discussed the guilty plea entered by the scaffolding subcontractor, Synergy Scaffolding Services Pty Ltd, and the relevant framework and penalties for a category 1 offence (gross negligence or reckless conduct) under NSW’s WH&S Act.
On 25 November 2022, the New South Wales District Court convicted Synergy Scaffolding and handed down a record-breaking penalty of $2.2 million for the category 1 offence.
In this article, we summarise the relevant considerations and factors the Court took into account to reach that penalty, and how such factors should serve as a reminder to all PCBUs in the construction industry of the steps they must take to ensure safety on their projects.
Background
Synergy Scaffolding was the scaffolding subcontract engaged by GN Residential Construction Pty Ltd to design, protect, maintain, and then dismantle the scaffolding for the Macquarie Park Project.
In April 2019, two workers were carrying out works under the 13-level high scaffold system when it collapsed, crushing both workers and trapping them for 30 minutes. The younger worker, an 18-year-old, died at the scene. The other worker suffered permanent injuries, and 5 others narrowly escaped death or serious injury.
After considering the significant failures in safety, the Court concluded that “the likelihood of the risk occurring [was] so high that it was almost certain”.
Failures in safety and events leading to the collapse
The Court heard that multiple events led to the incident, most notably:
- workers carrying out unauthorised works of removing tie anchors from the scaffolding to carry out works on the adjacent face of the building;
- items such as bricks, formwork and other materials being placed and stored on the scaffolding system, which increased the live load of the scaffolding tower, resulting in the scaffolding system exceeding the maximum load amount;
- a failure to install the scaffolding system in accordance with the design;
- a failure to correctly carry out the structural soundness inspection, which was confirmed by way of photo sent over SMS/text message and not by an in-person inspection;
- a failure to inspect the condition of scaffolding system for over 3 weeks; and
- a failure to install vertical bracing on the system, necessary to ensure its stability.
Findings of the Court
Finding 1 –the scaffolding structure in April 2019 had most, if not all, of the ties to the building removed. Despite this, no remedial action had been taken and the scaffolding was still being used by workers on the site. Upon investigation, SafeWork NSW discovered that only one tie was holding the structure in place, which mean that there was a significant risk of the system collapsing.
Findings 2 and 3 – The scaffolding plans did not specify the load rating for any level. The evidence before the Court, which was accepted, was that the design of the scaffold was inadequate and incapable of supporting the live load resulting in a high risk of collapse. To make matters worse, Synergy Scaffolding then failed to follow its design, and installed a system in breach of various requirements in the Australian Standards.
Finding 4 – the Court heard that on the morning of 30 March 2019, 5 transoms (which support planks forming a platform on the scaffold), were removed from the base of the scaffolding. The Principal’s foreman sent an image of the transoms to Synergy Scaffolding’s representative, asking if the transoms could be removed. Synergy Scaffolding advised the transoms could be removed.
The Court found, based on expert opinion, the removal of the transoms increased the risk of collapse, and the removal of any transoms should have triggered a visual inspection by an engineer, inspecting whether they could have been safely removed. The Court found that determining the structural soundness of a scaffold solely by way of a photo is not standard practice amongst engineers. Further, no engineer was engaged to certify the hoist on this scaffold.
Finding 5 – following the tampering of anchor ties, it was agreed by Synergy Scaffolding and the Principal Contractor that Synergy Scaffolding would undertake visual inspections on a weekly basis to ensure the scaffolding was structurally sound and no defects were found. Despite Synergy Scaffolding carrying out weekly inspections between October and March, no inspection was carried out for at least 3 weeks prior to the incident occurring. The Court commented that the “almost complete” absence of ties to the building “would have been obvious” if a visual inspection of the scaffolding had been conducted.
Finding 6 – between 1 and 5 March 2019, most of the perimeter scaffolding had been dismantled and by 5 March, there was no vertical bracing at all. The Court found, based on expert opinion, that had vertical bracing been present the scaffold would not have been at risk of collapse even with the magnitude of the live load.
Sentencing
For its reckless disregard for safety, Synergy Scaffolding was convicted and fined $2 million – making it the largest fine recorded for a WH&S offence in NSW. In sentencing, the Court explained “By its plea of guilty, the offender accepts that it foresaw the possibility of the risk to an individual of death or serious injury through its conduct but continued on regardless”.
Despite the fine being the largest ever in NSW, there has been harsh criticism directed at whether the maximum fines under the NSW WH&S Act are sufficient, most poignantly from the victim’s mother who publicly stated that “two million dollars for a big builder is nothing, it’s laughable.” Had these serious failures in safety occurred in other Australian jurisdictions, such as Queensland, it is possible that Synergy Scaffolding and its officers would have faced charges of industrial manslaughter – where fines can be up to $14.7M for Synergy Scaffolding and up to 20 years imprisonment for its officers.
Notably, New South Wales is one of the few remaining Australian jurisdictions where industrial manslaughter provisions are yet to form part of the state based WH&S legislation. In 2021, the NSW Government introduced the industrial manslaughter bill which is yet to be passed. It is unfortunate that only catastrophic failures in safety, like this case, prompt such action.
Takeaway
Whilst the financial penalty in this case was one not yet seen for a WH&S offence in NSW, it is just one of many significant, and highly publicised, workplace prosecutions for deaths or serious injuries to workers in the building and construction industry across Australia.
In sentencing, the Court aptly said – [t]his case should serve as a telling reminder that unsafe acts on a building site can and do lead to catastrophic consequences. Workers contemplating such unsafe acts should pause to consider what they might say to the people whose lives are torn apart by the possible consequences of their actions.
CDI Lawyers recommends that all PCBUs in the building and construction industry review and update their safety systems, including the monitoring of compliance, to ensure the safe and incident-free completion of their projects. In terms of scaffolding, the new “Scaffolding Industry Safety Standard” was developed in March 2022 following this tragic incident and since then, SafeWork NSW have embarked on a campaign to monitor strict compliance. If you have not already, you should review, understand and comply with this Code of Practice, including those carrying out construction works in other jurisdictions.
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