Not just the principal contractor’s responsibility: falls through penetrations

13 October 2021

It's not always the responsibility of the principal contractor on a construction site to manage the risk of falls, particularly the risk of falls through penetrations.

On 7 March 2018 a worker fell approximately three metres through a penetration on the deck he was working on, sustaining serious back injuries.

The principal contractor had engaged another company to provide the flooring system for a residential unit development. The subcontractor then engaged Steel Construct (the Defendant) to install the flooring system. A safe work method statement was prepared, reviewed and signed off by the subcontractor and Steel Construct, though it did not address the hazard of penetrations.

While there was evidence that covers had been placed over some penetrations, those covers were not sufficient to withstand the weight of a person falling onto it and were not secured over the penetration.

During the case, there were extensive arguments as to who was supervising the worker (the worker was a labour hire employee) and who was responsible for controlling the risk associated with the penetration.

It was ultimately determined by the Court that the Defendant (Steel Construct) had:

• Created the penetrations, which were necessary, during the installation of the flooring system
• Failed to identify the hazard created by penetrations and therefore failed to control the risk by covering the penetration with a compliant cover and not allowing workers to continue work until the penetration was covered.

Steel Construct and its director were subsequently found guilty of failing to discharge their obligations under the Work Health and Safety Act 2011. They were fined a total of $98,000.

This case is important as it highlights the following:

1. The need for proactive hazard identification and implementation of control measures on site, whether you are the principal contractor, subcontractor or otherwise.
2. If you are creating a void/penetration (whether it is part of the design or not), appropriate steps must be taken to control the risk of a person falling through it.
3. You must not allow workers to continue to operate in the vicinity of an unprotected penetration. A worker is not just one of your employees, but can include others engaged whose work activities are influenced or directed by you (e.g. labour hire workers and in some instances contractors).

Steel Construct appealed the conviction, but the appeal was dismissed. See the full decision.

Need assistance?

Now at HBA Legal, award-winning workplace health and safety experts, Damian Hegarty and Jamie McPherson, 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 hbalegal.com.

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