28 June 2022
A recent judgment has emphasised the limitation of relying on a specialist contractor to safely perform work, where the risk of injury is obvious and no action is taken to stop the unsafe work.
While a person conducting a business or undertaking (PCBU) is entitled to rely on the expertise of another contractor when they do not possess the skills to do the work itself, it does not completely remove the duty of care. Where there is a known risk to health and safety, and the PCBU has processes in place to reduce that risk, then it has a duty to stop any unsafe work until those processes are complied with.
Arkwood (Gloucester) Pty Ltd (Arkwood) conducted a business or undertaking involving organic recycling, including the recycling of biosolids at sewage treatment sites.
Wingecarribee Council engaged Arkwood to undertake recycling activities at the Council’s Moss Vale Sewerage Treatment Plant.
Arkwood had to move a dewatering conveyor by truck and had requested Highland Cranes to provide a crane, crane operator and dogman to undertake the task of loading the equipment onto the truck. The crane was driven to the site by an employee of Highland Cranes who did not hold a dogman’s licence and was not qualified to operate a mobile crane. The owner of Highland Cranes asked the employee to operate the crane as the owner, who was qualified, was not able to attend the site. In operating the crane, the boom came into contact with overhead powerlines, which resulted in serious injuries to two Arkwood employees who were attaching chains to the conveyor.
The Court rejected the defence conducted by Arkwood that it was not guilty as it could rely on the expertise of Highland Cranes.
The Court acknowledged that it would ordinarily be difficult to conclude that the PCBU has breached its duties if the task demonstrably falls outside its expertise, and it appears that the independent contractor has been carefully and safely performing its work. However, Arkwood, through its workers, was able to observe that the crane was being driven underneath the powerlines. Further, Arkwood, through its workers, could observe that in positioning itself for the lift of the conveyor belt, which would require some raising of the boom, the crane was positioned underneath the powerlines and thus the boom could inadvertently come into contact with the powerlines.
The Court found that Arkwood’s workers could have taken two simple safety precautions:
It is not enough for a person to merely assume that someone else will attend to safety requirements. Arkwood had control over its own employees, and those employees had the power to stop work, or insist that work be carried out in a different and safer fashion.
The Court imposed a fine of $150,000 and ordered Arkwood to pay the prosecutor’s costs of $102,000.
Author: Michael Selinger
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