High stakes – whose role is it to control fall from heights?

29 January 2024

Generally, an employer who engages a person to perform an activity at a height owes the primary duty of care to control the falls risk. However, in construction, the obligation is necessarily shared between numerous duty holders, with each one having its own part to play in controlling the risk.

Guest article by HBA Legal

Unfortunately, we frequently encounter situations where multiple duty holders are involved and falls from heights occur. This often happens because the duty holders haven’t clearly defined or fully understood their individual and shared obligations in managing the risk.

For example, a common scenario seen is:

A Principal Contractor engages a Subcontractor Painter on a project. A painter employed by the subcontractor painter arrives on site and observes a scaffolding system that enables them to reach the second level of the building. That painter hops up on the scaffolding and starts working their way around the second level, though falls 4m through a gap, where a hop-up plank has been removed, and sustains a serious injury. The subcontractor painter did not have a safe work method statement (SWMS) for performing work at height.

In the above scenario (and assuming some additional facts), the duty holders include:

1. The Principal Contractor who has a duty to ensure, so far as is reasonably practicable, the scaffolding provided by them is without risk to any person using it. Compliance with that duty could involve routinely inspecting the scaffold and ensuring workers are continually reminded not to interfere with the scaffolding.

   The Principal Contractor is also required to obtain a SWMS from the subcontractor, prior to work commencing, where construction activity involves the risk of a worker falling more than 3 metres.

2. The Subcontractor, as the employer of the painter who fell, owes a duty to ensure the health and safety of its workers, so far as is reasonably practicable. In demonstrating compliance, the Subcontractor could implement a system where the worker observes the scaffold from the ground first to identify any obvious gaps and check the scaff tag prior to accessing the scaffold. The Subcontractor is also responsible for preparing a SWMS detailing that system, prior to work commencing and giving a copy of that SWMS to the Principal Contractor.
3. Workers have a duty to take reasonable care for their own health and safety and that of others who may be affected by their own acts or omissions. For example, if it is discovered another worker removed the ‘hop-up plank’, without authorisation, they could be personally prosecuted.

As that scenario demonstrates, the responsibility to control the risk of falls from heights is a shared endeavour. Regardless of your role, it is important that you stop and review whether the controls you have in place are effective.

Contact HBA Legal

Award-winning workplace health and safety experts, Damian Hegarty, Andrew Ross and Jamie McPherson from HBA Legal (part of Crawford & Company), are pleased to continue their longstanding association with Master Builders. If members need assistance with any WHS, QBCC or insurance issues, please reach out. Visit the HBA Legal website for contact details.