Prosecution Details

Being a principal who in the course of trade or business engaged a contractor to carry out work for it, failed to provide and maintain, so far as practicable, a working environment in which the contractor was not exposed to hazards, being matters over which the principal had the capacity to exercise control, and by that failure caused serious harm to an employee; contrary to sections 19(1), 23D and 19A(2) of the Occupational Safety and Health Act 1984.

The Accused operates a roof carpentry business, and in this capacity was engaged by a building company to construct a timber roof for a house under construction in Baldivis.

On Friday 26 June 2009 a worker was working for the Accused at that site as a roof carpenter.  The worker was an independent contractor and experienced roof carpenter who had been engaged by the Accused. The Accused was in charge of two workers on the site that day. The worker and a labour hire apprentice. The Accused directed and managed the work of both workers.

The worker was using a Paslode PSN100 nail gun to attach steel holding down straps to timber sections of the roof. This nail gun was owned by the Accused and supplied to the worker for this task by the Accused.  The nail gun the worker was using was purchased by the Accused approximately12 months prior. When purchased, the nail gun came with an operating manual that provided safety instructions. One of the safety instructions was that the nail gun was "for use with timber to timber fixing or materials of similar or lesser density".

The Accused and the worker had used this nail gun to perform the same task on other houses in the 12 months leading up until the date of the accident without incident.  Whilst carrying out this task the worker experienced several ricochets where the nail from the nail gun failed to go through the steel straps and instead flew into the air.  The steel hold down straps were 1.2mm thick in accordance with the engineering specifications of the site that were prepared by the building company.

Prior to the accident, the Accused heard a few ricochets and approached the worker asking if everything was OK. He was told by the worker that it was, before leaving the worker to carry on.  Soon after this conversation the worker was struck in the eye by a ricochet nail, resulting in the permanent loss of sight in his left eye.

The General Operating Safety Manual for the Paslode PSN100 nail gun specified that the nail gun was suitable for "use only with timber to timber fixing or materials of similar or lesser density. There were other models of nail gun available at the time, which were suited to steel to timber fixing. The same manufacturer supplies one such nail gun, called a coil nailer, which costs approximately $700.

Alternatively, the steel hold down straps could have been fixed to the timber sections of the roof with tech screws by using a cordless drill. For approximately four months prior to the accident, the building company had begun supplying the Accused with tech screws as an alternative means of fixing the hold down straps to the timber roof members. Prior to that, the building company had only specified that the steel hold down straps be nailed in.

At the time of the accident, the worker was not wearing appropriate safety glasses. He was wearing sunglasses that he had incorrectly assumed were safety glasses.

Appropriate safety glasses were originally supplied with the Paslode PSN100 nail gun, or could have readily been obtained from safety equipment suppliers. Prior to the accident, the Accused had a spare pair of safety glasses available for use by the worker in the tool box that he kept in his vehicle. Prior to the accident, the worker was aware that those safety glasses were there and available for him.  The Accused was not aware that the worker was not wearing appropriate safety glasses until after the accident.

Whilst the Accused had told the worker on numerous occasions prior to the day of the accident that he must wear safety glasses, specifically whilst using the nail gun to nail down the steel hold down straps, the Accused did not check that the worker was wearing safety glasses and incorrectly assumed that the sunglasses the worker was wearing were safety glasses.

The Accused plead guilty and was convicted.