Employers will be held liable for any misconduct of their officers, if it can be attributed to the company, that is a fact. This was confirmed in the case of Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 (13 May 2021), where an appeal by Landmark Roofing Pty Ltd (Landmark) was dismissed by the Court of Appeal.

Previously Landmark was fined $400,000 after an apprentice died after he fell six metres through a brittle skylight and his head struck a crane rail. The apprentice and his supervisor had been working on replacing fire-damaged roof sheeting and had been directed to replace the skylights before they finished at the work site. The Court in that case determined there was a failure of safety systems to protect the worker. Most importantly Judge Russel reiterated that attempts to do the bare minimum will not cut it. “It is not enough to have a procedure written down in an SWMS. Further vital steps are required – discussion with workers, induction into the SWMS, training in the SWMS procedures, re-iteration of safety procedures at toolbox talks.” For the following reasons, there was a breach of primary safety duties by the company:

• Had not revised the SWMS for the changed tasks of replacing skylights which involved different risks
• Did not direct employees to use fall restraint systems
• Insufficient inductions and toolbox meetings so workers were aware of risks without working with fall restraint systems
• No training provided regarding controls and procedures in SWMS

Interestingly the supervisor was also found guilty of the systems breaches as an officer of Landmark. It was on this basis that Landmark lodged their main ground of appeal, alleging that the supervisor engaged in misconduct by not implementing the safety measures. By virtue of his misconduct, the company asserted it could not be attributable to the company as the supervisor acted on his own. It argued the supervisor disobeyed the work instructions to make sure that workers were harnessed correctly and his misconduct was not reasonably foreseeable. As could be expected, the Court held this was irrelevant. Landmark had misunderstood the officer test – so long as the supervisor qualified as an ‘officer’ and his conduct was attributable to the company, that was enough. Whether it was reasonably foreseeable or not did not matter.

The only way Landmark could have discharged the vicarious liability was if they could prove they had done everything reasonably practicable to prevent the risk from occurring, but Landmark had glaring omissions in their safety systems. Their appeal was dismissed with costs.

Key Lessons

• The ‘reasonably practicable’ test cannot be satisfied with just a SWMS – make sure you provide sufficient information and training on any SWMS
• SWMS cannot be general – they must be targeted at the specific task
• Be clear on who your officers are and make them aware of their increased obligations and liability
• Ensure competent supervision – you will be held liable for the actions of your officers
• Always ensure controls are being followed and enforced – especially with high risk tasks such as working with heights

Written by Nina Hoang

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