Summary:

A scaffolding collapse killed one worker and injured another where the scaffolding was almost entirely untethered to the building and was overloaded. The scaffolding contractor was fined $2 million (of a possible $3 million maximum penalty) for a category 1 offence under the WHS Act. Relevant factors included:

• scaffolding design
• systemic failures in safety and administrative measures
• failure to conduct regular scheduled inspections
• failure to take appropriate action when it knew of the obvious risk of collapse

In Detail: 

GN Residential Construction Pty Ltd (GN) was the principal contractor on a construction project in Macquarie Park. GN engaged Synergy Scaffolding Service Pty Ltd (Synergy) to design, erect, maintain, and dismantle the scaffolding at the site. In April 2019, a section of unsecured scaffolding collapsed. A form worker on the site was crushed, killing him. Another worker was trapped and suffered serious injuries.

GN and Synergy were prosecuted by SafeWork NSW with offences under the Work Health and Safety Act 2011 (NSW) (WHS Act).

Synergy pleaded guilty to an offence under s 31 of the WHS Act. It was fined $2.2 million with a 10% reduction for early guilty plea. The maximum fine applicable was $3 million. 

Section 31 of the WHS Act provides:

Gross negligence or reckless conduct—Category 1(1)

A person commits a Category 1 offence if—

• the person has a health and safety duty, and
• the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and
• the person—
  • engages in the conduct with gross negligence, or

is reckless as to the risk to an individual of death or serious injury or illness.

GN had pleaded guilty earlier to an offence under s 21 of the WHS Act (being Category 2 seriousness), and was fined $1.5 million in 2020 (see SafeWork NSW v GN Residential Construction Pty Ltd [2020] NSWDC 764). 

Relevant background and factors:

• Synergy had Systems of Work and SafeWork Method Statement in place dated 8 December 2017. Neither covered working under scaffolding, scaffolding collapse or unauthorised alterations to it. In respect of falling from scaffolding, they referred to the relevant Australian Standard.
• As work progressed throughout late 2018 and early 2019, GN and Synergy oversaw the gradual dismantling of portions of the scaffolding.
• Synergy and GN noted in about October 2018 that unauthorised alterations were being made and instigated weekly inspections (which were not regularly maintained in the weeks leading up to the accident.
• By April 2019, most or all of the ties attaching the relevant section of scaffolding to the building had been removed, despite it still being used by workers.
• The scaffold was also overloaded when it collapsed.
• SafeWork investigations after the incident found that there were no obvious ties still connected to the scaffold section or the façade of the building, and at most, one tie secured the scaffolding to the building at the time of the collapse.

Sentencing:

Applying the relevant sentencing factors (s 3A of the Crimes Sentencing Procedure Act 1999 (NSW)) it was found that:

• the offence was of the utmost objective gravity;
• synergy was hired to design, maintain and dismantle the scaffolding and knew the scaffolding was relied on for safety of workers;
• GN requested a load rating of 2 tonnes per level. Synergy supplied plans that did not specify load rating and erected scaffolding that did not satisfy the load requirement;
• despite knowledge of the Australian Standards which required them, no vertical bracing was used on the scaffolding;
• Synergy knew of the unauthorised removal of ties and that the scaffolding was being overloaded;
• it would have been obvious on a visual inspection that almost no ties remained securing the scaffolding to the building, which went unnoticed due to failure to conduct the agreed weekly inspections for almost a month prior to the collapse;
• transoms were removed in March 2019 without consultation with an engineer;
• Synergy failed to warn GN of the risk of collapse;
• the overloading, lack of vertical bracing, removal of ties and removal of transoms made the likelihood of the risk of collapse so high that it was almost certain. Synergy admitted that it foresaw the risk of serious injury or death and the extent of the risk was great.

Deterrence was a significant factor, as was aggravation. While no one is required to actually be harmed, the death and serious injury that occurred were sufficient to constitute aggravation.

Synergy had no prior convictions, expressed remorse and pleaded guilty. It was noted (somewhat negatively) that attempts to rehabilitate relied largely on administrative changes which were the very factor that failed and brought about the collapse.