Safety Duties Beyond Contract Obligations
5 May 2020
The recent case of Safe Work NSW v NSW Bricklayers highlights the simple safety rule that a business cannot exclude its safety obligations by contract.
NSW Bricklayers was found guilty of Ss.19 and 32 of Work Health and Safety Act 2012,when it constructed a brick wall and didn’t secure the wall (as that was the responsibility of the principal contractor) in circumstances when there was an obvious risks of serious injury or death to others on site. The wall collapsed in heavy winds killing one and seriously injuring another.
The District Court of NSW held that there was SafeWork guidance surrounding the erection of walls describing what was reasonably practicable, NSW Bricklayers should have undertaken a SWMS because it shared the site with others, and a SWMS would have immediately demonstrated the need for the wall to be secured. The resources required to make it safe were not substantial. They had a joint responsibility to make the wall safe; one that couldn’t be delegated to another as it was the business in charge of erecting the wall. As it created the risk it had to ensure the risk was managed.
What are the lessons?
- Just because a contract says you are not responsible, if you create a risk, you must manage it;
- When considering risks you must consider the risks to others – where a site is shared this must be done through a SWMS and
- Risks, like hazardous weather, change based on the day- you must keep addressing risk as it emerges.
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