On 1 December 2023 Judge Strathdee issued her orders against Mars Commercial Pty Ltd.
SafeWork NSW were represented by Barrister Malcolm Scott, Mars Commercial Pty Ltd were represented by Barrister Mark Cahill.
Background
On 24 August 2020, SafeWork NSW Inspector Daniel Lawler had attended the Site and issued two improvement notices for the management of risk of falls on levels 2 and 3 at the Site. An improvement notice is basically a 'stop work' and you can't resume work until you fix the issue.
It is apparent that Inspector Lawler failed to review the SWMS' in place onsite (If he challenges that, that is even worse given how inadequate the SWMS were at [25] and [30] of the case. Usually an Inspector will conduct a thorough inspection of the site before taking an enforcement action however SafeWork are also not an unlimited resource. With only 370 inspectors for 870,916 businesses in NSW - this is about 2,353 businesses per inspector. If they spent a full day inspecting a business, each inspector would take almost 12 years to inspect every business in the state and that is assuming that they don't have any incidents or need to do follow ups.
Why am I emphasising this before getting into the meat and potatoes of the case? Well, it is important to know that SafeWork knew this was a potentially dangerous site and didn't do any followup on it. This is because inspectors just don't have the time and resources.
To put it mildly, it's not a good look for a site to be given an improvement notice for a fall from heights matter, that notice is cleared almost immediately and weeks later a worker is paralysed from a fall. Usually I don't criticise SafeWork because they didn't know the crimes that were being committed, but here - they were well aware of the high potential for a criminal offence and it is likely a follow up inspection could have prevented this incident. My critique isn't of the Inspector personally but of SafeWork.
Rant over, back to the incident!
Mars Commercial (Mars) was at all material times the principal contractor of a refurbishment project being undertaken at 238 Castlereagh Street in Sydney, New South Wales.
Mars employed 8 people and contracted with North South Carpentry and Joinery Pty Ltd (‘North South’) to provide carpentry works at the Site pursuant to an agreement dated 5 November 2020.
On 19 November 2020 Mr Martin Comiskey (a worker for Mars) and other workers were working on level 3 following installation of rafters into a metal roof structure located over a section of level 3 of the building at the Site. Part of the work being undertaken on 19 November 2020 involved the removal of some of those rafters to create a portal for ongoing crane deliveries to the Site.
The metal roof structure, above the north-western side of level 3, into which the rafters were fixed, was located adjacent to a void in the building for a lift that extended to the ground level.
A worker was removing the rafters using a mobile scaffold whilst Mr Comiskey was performing work from the mezzanine.
At approximately 10:41am, Thomas Lehmann who was a subcontractor to North South observed Mr Comiskey falling through the void on level 2 of the site and hitting the scaffolding which had been erected in part of the void. Other workers who were present moved some additional planks underneath Mr Comiskey to stop him falling further (this was very quick thinking on their part and likely did prevent deadly injuries). The fall was about 8 metres.
Mr Comiskey’s injuries as a result of the fall were substantial. He suffered a level C6 to level CB spinal injury resulting in no movement below his chest, multiple skull fractures and post traumatic amnesia. Mr Comiskey required extensive surgery to repair lacerations on his head and for the insertion of 2 rods in his back and plates in both forearms.
Mars' main failing
There were no fall restraint mechanisms on the mezzanine level or the mobile scaffold on level 3 at the Site, including attachment points for harnesses, rails or barriers around the edge of the mezzanine or mesh or other material covering the void. The mobile scaffold had been assembled in a way such that there was no handrail between the work platform and the void.
There are other failings like inadequate policies, SWMS and poor induction processes but these really should have been picked up by the SafeWork inspector as the policies, SWMS and Induction process hadn't changed since his inspection.
Sentence
Following the standard mitigating factors, a fine of $412,500 was issued and 3 people in Mars must complete WHSO training (Certificate IV in Work Health and Safety) by 21 November 2024.
This penalty of training a WHS Officer is seldom used but it is available to a judge under the combination of the Sentencing Act and Work Health and Safety Act 2011 (NSW), s 241. This is actually the first time I personally have seen it ordered to 3 people, usually it is just an order affecting the director of a company.
Given that the Cert IV is delivered largely online over up to 12 months, I would argue that the timeline is a little unfair, I would give until 1 January 2025 to ensure that they had time to complete it in accordance with the timeline allowed by the RTO, but I personally smashed mine out in 10 days so it is definitely do-able.