Reliance on scaffolding contractor qualifications

In June 2020, Civil 1 Pty Ltd, a demolition company, was engaged to undertake demolition works of nine commercial buildings on the corner of Mann and Donnison Streets, in Gosford, NSW (Site).

The company was the appointed principal contractor for the demolition works at the Site.

In July 2020, the company engaged 21^st Century Building Services Pty Ltd (21 CBS) to supply, install and dismantle scaffolding at the Site. The Council Development Approval required a Type A hoarding be affixed to the scaffolding facing Donnison and Mann Street, to protect individuals using the footpath from flying debris and dust generated from the demolition works.

21 CBS erected the scaffolding and Type A hoarding and provided a scaffold handover certificate to the defendant. Following this, 21CBS attended the Site a number of times to reduce the size of the scaffolding as the buildings were progressively demolished.

On 18 August 2020, 21 CBS scaffolders attended the Site to remove the scaffolding and hoarding in its entirety. At about 10:30 am on that day an electrical event occurred which rendered the scaffolding unsafe to access. All workers ceased work until the energy provider could attend and effect repairs. The scaffolders left the Site as the repairs would take some time.

On 19 August 2020, the scaffolders had been requested to return to the Site to continue the removal of the scaffolding, as they had removed all remaining scaffold ties, which had secured the scaffolding to the remaining building. The scaffolders did not return to the Site as they had been booked for other jobs.

At about 3:00 pm on 19 August 2020, 21 bays of scaffolding measuring about 60 meters in length were blown over by high winds that had been predicted that day. The scaffold was blown from the Site and collapsed onto the street, contacting and causing injuries to a pedestrian and damaging several parked and moving vehicles. No workers were injured by the collapse.

The demolition was occurring adjacent to the Safework NSW office building in Gosford.

Safework NSW investigated, which included interviews, gathering documents and video recordings of the demolition works up to the day of the incident and following. Safework issued a Prohibition Notice to the Company following the incident to not undertake demolition within 9 meters of the footpath, as the hoarding and scaffolding were replaced with a wire mesh fence.

Arising from the scaffolding collapse, the company was prosecuted in the District Court of NSW for failing to ensure the health and safety of workers and pedestrians, pursuant to sections 19(1), 19(2) and 32 of the Work Health and Safety Act of NSW (WHS Act). The company was also prosecuted for failing to comply with the prohibition notice by conducting demolition works within the prohibited zone.

The company entered a plea of not guilty to all allegations

The Court found that the company could rely upon the expertise of the qualified scaffolding company, 21 CBS, who had advised the defendant that the scaffolding was safe on the 18 August 2020.

The prosecution alleged that the defendant was aware of the risk of the scaffolding collapsing due to the high winds and that it could have taken the pleaded reasonable steps to control the risk.

The prosecution alleged that the reasonable measures of further consultation with the scaffolding company, the use of counterweights in the scaffolding, erection of buttress bays or raker ties and provision of adequate training and supervision, would have managed the risk of the scaffolding collapsing.

Court finding

The Court found that the company had in place a WHS Management Plan for the Site and a demolition plan to manage the demolition works.

Further, the Court found that at the time that the scaffold blew over, none of the workers were in any real danger as the scaffolding blew over into Mann Street and away from the site where they were working. The Court confirmed that it was not satisfied beyond reasonable doubt that the alleged reasonable measures would have caused the workers or the pedestrian to be exposed to a risk of death or serious injury as:

• 21CBS scaffolders told the company, the day prior to the collapse, that they considered the scaffold to be safe; and
• the company is entitled to rely on the specialist advice of the licensed scaffolder that it had engaged to conduct work that it was qualified to do.

The Company was found not guilty of the two section 19 duty allegations it faced.

The Court found that the company had undertaken demolition work approximately five meters from the boundary, which was in breach of the nine meters set out in the Prohibition Notice. Further information on the decision can be found at: SafeWork NSW v Civil 1 Pty Ltd – NSW Caselaw.

The Court will set a further date for penalty determination on the Prohibition Notice allegation.

This article was written by Greg McCann, Partner.