Prosecution Details

Charge 1 - Being a person who, in the course of trade or business, engaged a contractor to carry out work for it, failed, so far as was practicable, and in relation to matters over which it had the capacity to exercise control, to provide and maintain a working environment in which any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned was not exposed to hazards, and by that failure caused the death of a person.

Charge 2 - Being the main contractor, where there was a risk of persons being struck on the head by a falling object at a construction site, failed to ensure that at all times when the persons were at risk that the persons wore a safety helmet complying with the relevant requirements of AS/NZS 1801.

Charge 3 - Being the main contractor, failed to ensure, as far as was practicable, that a copy of the occupational health and safety management plan was available for inspection, until the construction work was completed, by a person doing construction work at the construction site.

Charge 4 - Being the main contractor, failed to prepare the necessary safe work method statements and keep them up to date.

Charge 5 - Being a person who, at a workplace, was the main contractor, allowed persons to do high risk work of a particular class where those persons did not hold a high risk work licence for that class of work.

CHARGE 1

On 13 March 2017, an employee of a contractor engaged by the offender, was killed when a precast aerated concrete panel fell onto him.

THE WORK OF THE OFFENDER

The offender is a company that undertakes building work.  Prior to 2017 the offender was predominantly involved in building modular granny flats.  On 6 October 2016, the offender entered into a lump sum building contract with the owners of a property (the Site) whereby the offender agreed to build a new house for the landowners.

The house was to be built out of precast aerated concrete panels that were manufactured in China and imported into Australia (Panels).  This was the first occasion that the offender had been involved in constructing a building with the Panels.

PERSONS INVOLVED IN THE WORK

The Offender

The director of the offender (the director) is a registered builder and was in control of the Site and directed the other persons as to what work was to be done.   The director was on Site at all material times.

Contractors

The offender subcontracted a building company to assist in the construction of the house including the construction of the footings, installation of the sub floor, walls and roof.  An employee of the building company was employed as a carpenter (carpenter 1). The building company further subcontracted another carpenter (Carpenter 2).  Carpenter 1 and 2 were involved in the construction of the house generally, including the erection of the Panels and were on Site at all material times.

The Offender engaged a crane company  to provide a crane to move the Panels. Together with a Liebherr LTM 1070-4.2 Mobile Crane (Liebherr Crane), the crane company sent two employees to Site, a crane driver; and a dogman (the victim).

The crane driver operated the Liebherr Crane supplied by the crane company that was used to move the Panels.  When the Panels were being moved, the victim assisted in the rigging and dogging of the Panels.

The crane driver and the victim were on Site at all material times.

The Offender purchased the Panels to be used to construct the house from a company (panel company) providing panels used in construction.  One of the two directors of the panel company described his role on Site as being for some oversight and to provide guidance to the Offender.  He also assisted with the rigging and dogging of the panels.  He was on Site at all material times.

THE EVENTS ON 13 MARCH 2017

As at 13 March 2017, construction had reached the stage that the raised floor had been built at the Site and the offender was in a position to start erecting the Panels.  The Panels had been delivered to the Site. They were delivered in an open top sea container on a trailer which was left on Site. The sea container remained on the trailer.

In or around early afternoon, work commenced on lifting the Panels out of the sea container, moving them into position on the raised floor and erecting them.

The first Panel was rigged using soft slings. The first Panel that was lifted out of the sea container was out of sequence in terms of the construction sequence and therefore, needed to be stored temporarily.  It was stored by laying it flat on gluts on the raised floor.

The second Panel lifted out of the sea container was also rigged using soft slings, which prevented it from being placed in position. As a result, the second panel was leant up against a row of 5 tree stumps that traversed the driveway on Site and the lifting method was changed to chains and hooks. It was then lifted again and set in position WQ3.

The third Panel lifted out of the sea container was placed in position NQ3 on the raised floor, perpendicular to the first Panel and fixed into position.

After 13 March 2017, it was discovered that the third Panel lifted out of the sea container and placed in position NQ3 was the wrong Panel for that location.

The fourth Panel to be removed from the sea container was Panel WQ8. Panel WQ8 was not the next Panel needed in the construction sequence.  As a consequence, it needed to be stored temporarily.

Panel WQ8 contained a glass sliding door and sliding window.  Panel WQ8 weighed between 0.75 and 1.14 tonne.

The Director decided that Panel WQ8 would be leant up against a row of 5 tree stumps that traversed the driveway on Site in the same manner that the second Panel had been temporarily stored.

Panel WQ8 had been rigged in the same method as the third Panel, using chains and hooks.  Panel WQ8 was lifted out of the sea container and lowered down towards the driveway. The dogger, The victim, guided Panel WQ8 into position next to the row of five tree stumps, with the base of Panel WQ8 about 1 metre away from the tree stumps. Some gluts had been placed in position ready for the base of Panel WQ8 to be placed upon them.

The victim was standing on the driveway side and next to Panel WQ8 as he was assisting with guiding Panel WQ8 down onto the gluts.

The Director also assisted in guiding Panel WQ8 down onto the gluts. He noticed that as Panel WQ8 was coming down, one end of Panel WQ8 was around 1 metre from the tree stumps and the other end around half a metre from the trees. So, he grabbed the side of Panel WQ8 to straighten it up and make it parallel to the tree stumps.

Carpenter 1 and the panel company director were standing on the far side of the tree stumps, being the opposite side from where the victim was standing.  Panel WQ8 was lowered onto the gluts and leant up against the five tree stumps.  Just as Panel WQ8 had been set down and leant against the trees, The Director said to the panel company director words to the effect "can you just get a rope and tie that to the tree just to secure it". He was referring to tying Panel WQ8 to the tree stumps.

At about that time, The Director's mobile phone rang and he answered it. He turned away from Panel WQ8.

It is not clear whether the two chains on the driveway side of Panel WQ8 were removed or fell off. However, after Panel WQ8 had been placed on the gluts and leant against the tree stumps, Carpenter 1 started walking around to the driveway side of Panel WQ8 and saw the victim with the chains in his hands.

As The Director stepped away to continue with his phone call with the the crane company employee and while the victim was seen with the two driveway side chains in his hands, Panel WQ8 began to fall away from the tree stumps and back towards the driveway.

It is not known what caused Panel WQ8 to fall.

Carpenter 1 noticed Panel WQ8 was falling and yelled at the victim to "get out of there". The panel company director also noticed Panel WQ8 falling and yelled at the victim to move. The victim took one step, looked up and then Panel WQ8 fell on him.

As a result, the victim died.

It was reasonably practicable for the Offender to:

1. place Panel WQ8 flat on the ground; or alternatively
2. temporarily prop or brace Panel WQ8 on the raised floor of the building being constructed at 17 Lawley Road, Yarloop.

The offender failed to implement any of those measures and by that failure caused the death of the victim.

SAFE WORK METHOD STATEMENTS

The Offender compiled a Safe Work Method Statement dated 28 February 2017 (February SWMS).

That February SWMS:

(a)           was not taken to Site on 13 March 2017, but was left at the Offender's business premises;

(b)           in relation to the high risk construction work of construction work involving precast concrete, failed, as far as practicable, to set out:

(i)            any hazard which included a falling Panel, arising from the temporary storage of the Panels; and

(ii)           the risk of injury or harm to a person resulting from any such hazards; and

(iii)          the safety measures to be implemented to reduce the risk, including the control measures of placing the Panels on the ground or temporarily propping/bracing the precast aerated concrete panel on the raised floor of the building under construction, to be applied to the activity or hazards; and

(iv)          a description of the equipment such lifting gear, rigging, props and/or braces used in the work activity; and

(v)           the qualifications and training (if any) required for persons doing the work which included high risk construction work licences for dogging and rigging, intermediate, to do it safely.

On 28 March 2017, the offender compiled a second Safe Work Method Statement (March SWMS).

The March SWMS (at page 3):

(a)           identified the process task of "installing high level precast panels";

(b)           to which there was a possible hazard described as "panel falling";

(c)           to which there was a "high" risk rating; and

(d)           in relation to that possible hazard provided a control measure of "place wall into position and prop as per manufacturers recommendations" and "leave props in place until safe to remove".

The March SWMS also (at page 4):

(a)           identified the process task of "temporary movement and placement of concrete panels";

(b)           to which there was a possible hazard of "placing panel down";

(c)           to which there was a "significant" risk rating; and

(d)           in relation to that possible hazard provided a control measure that included "panel to be braced to appropriate temporary structure before removal of safety chains" and "all workers involved to be briefed that the panel is temporarily propped".

CHARGE 3

While the work was being carried out at the Site, there was a risk that persons working at the Site would be struck on the head by falling objects, including:

(a)           dislodged or loose pieces of load being lifted;

(b)           dislodged or loose lifting gear; or

(c)           dislodged or loose rigging gear.

While the work was being carried out at the Site, none of the persons involved in the work at the Site were wearing a safety helmet.  That is, The Director, Carpenter 1, Carpenter 2, the victim, the panel company director; and the crane drive, were not wearing a safety helmet.

CHARGE 4

The Offender did not have an Occupational Health and Safety Management Plan and did not have an Occupational Health and Safety Management Plan available for inspection by persons doing the construction work at the Site.

CHARGE 5

The high-risk construction work involving precast concrete was the construction of the home with Panels.  There was a hazard of a panel falling (hazard) for the high-risk construction work done, or to be done, at the Site.

The Offender failed to prepare a Safe Work Method Statement that identified:

(a)           the Hazard;

(b)           any risks of injury arising from the Hazard;

(c)           safety measures to be implemented to reduce the Hazard.

CHARGE 6

The Victim did not hold a high risk work licence to carry out rigging work.

The Offender allowed the victim to do high risk rigging work. 

Namely, the Offender allowed the victim to carry out the following classes of high risk work: 

(a)           rigging work involving a crane; and

(b)           rigging work involving pre-cast concrete members of a building or structure.

In relation to rigging work involving both a crane and precast concrete members, the victim was involved in the rigging of the Panels while they were being moved using the Liebherr Crane throughout the course of the work at the Site.  That work involved in moving and placing the Panels in accordance with the construction sequence.

The Panel Company Director

The victim did not hold a high risk work licence.  However, the offender allowed the panel company director to do high risk rigging and dogging work. 

Namely, the Offender allowed the panel company director to carry out the following classes of high risk work: 

(a)           dogging work

(b)           rigging work involving a crane; and

(c)           rigging work involving pre-cast concrete members of a building or structure.

In relation to dogging work, he was involved in the dogging work of erecting the Panels.

The panel company director was involved in the rigging, involving both a crane and precast concrete members of the Panels while they were being moved using the Liebherr Crane including going into the sea container to attach the hooks to the Panels.

Gran Designs WA Pty Ltd plead guilty to all five charges and was convicted on 3 May 2021.  In respect to the causative charge  the Magistrate imposed an initial fine of $200,000 (from a maximum of $400,000), reduced by 10% for plea of guilty to $180,000.  The Magistrate further reduced the fine by $30,000 pursuant to s 53 of the Sentencing Act to recognise the company's limited means to pay. Accordingly the final fine imposeed was $150,000.00.

In respect to the remaining remaining charges involving breaches of the Occupational Safety and Health Regulations 1996 the Magistrate imposed a global penalty with a starting fine of $30,000 including a 10% reduction for the guilty plea and further reduced by $5,000 pursuant to s 53 of the Sentencing Act.  The total global fine for the regulation breaches is $25,000.