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21 Jan 14
Principal contractor acquitted of safety breaches after worker killed in NSW

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In a closely followed case, the Industrial Relations Commission has found Abigroup Contractors Pty Ltd (Abigroup) and GTE Workplace Management Pty Ltd (GTE) not guilty of charges under section 8(1) of the now repealed Occupational Health and Safety Act 2000 (NSW) (OHS Act) for failure to ensure the health, safety and welfare at work of all employees. 

In Inspector Christensen v Abigroup Contractors Pty Limited & anor (2013) NSW IR COMM 111 (20 December 2013), Abigroup was found not guilty of breaching section 8(1) as none of its employees were exposed to a risk of injury, however, it was determined that Abigroup, as principal contractor, had failed to ensure the safety of non-employees under section 8(2).

The case has implications for other principal contractors.

Background
Charges were laid against Abigroup and GTE after a fatal incident occurred on 24 March 2009 during the construction of a section of railway near Telarah in New South Wales (NSW).  Abigroup was the principal contractor on the project which required the use of a crane to replace a section of the railway line.

During the project, Abigroup subcontracted to rail infrastructure employer, Hebron Holdings Pty Ltd (Hebron), who subcontracted MVM Rail Pty Ltd (MVM) to provide labour for the project.  MVM then engaged GTE to provide further workers for the project.

On the day of the incident, a panel of railway lines and sleepers were suspended by a BOOM Logistics Ltd (BOOM Logistics) crane but could not be aligned appropriately, which led workers to make a number of adjustments to the panel. 

Despite the adjustments, the panel still would not fit.  This led to the crane crew and Hebron, MVM and GTE workers to be directed to unclip part of the load (contrary to the lifting plan) causing a number of lines to spring free and strike five workers.

A GTE worker was killed, and an MVM supervisor sustained severe crush injuries to his forearm, which had to be amputated.  Three further workers suffered injuries including broken bones. 

Abigroup pleaded not guilty to failing to conduct a risk assessment for the amended task, or for ensuring an adequate communication system was in place.  GTE pleaded not guilty to failing to review safe work method statements and for failing to ensure its workers received appropriate induction training.

Decision
Justice Michael Walton found GTE could not have known, or foreseen the risks associated with the amended task to its employees, because the amendments weren’t considered until a short time before the incident occurred.

Justice Walton found that Abigroup was not guilty of breaching section 8(1) as none of its employees were exposed to a risk of injury.  He found however, that Abigroup as principal contractor had failed to ensure the safety of non-employees under section 8(2) and had failed to obtain a risk assessment on the new task.

Walton found that the task had been ‘so fundamentally altered’ that safety measures outlined in Hebron and BOOM Logistics job safety analysis of the original task were ‘substantially inoperative, ineffective or incomplete’.

MVM Rail Pty Ltd was fined $160,000 in October 2013 over the incident, for failing to supervise its workers and subcontractors.
BOOM Logistics was fined $100,000 in September 2012, for failing to comply with its crane lift plan, and Hebron was fined $200,000 in April 2012 for failing to identify the risk of unclipping the load.

Abigroup was convicted of breaching section 8(2) for failing to risk assess the amended task and will be sentenced on 4 March 2014. 

 

To read the full case, please click here: Inspector Christensen v Abigroup Contractors Pty Limited and Anor [2013] NSWIRComm 111.

To understand the implications for principal contractors or for further information on any of the issues raised in this alert please contact our team.

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication. 

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