Court finds heights risk 'significant and obvious'

In brief 2 min read

A principal contractor and an employer have been ordered to pay nearly $700,000 collectively to a window glazier who fell from a 4.5-metre-tall ladder while placing silicone between a steel column and a window.¹

Key takeaways

This decision is a reminder that:

• employers and other persons conducting a business or undertaking have a duty of care to take reasonable steps to create a safe workplace;
• duty-holders cannot delegate or transfer their duty of care to other persons; and
• employers need to demonstrate that they have, at least, proactively established, maintained and enforced safe systems of work, and have not adopted a 'set and forget' mentality.

Background

The glazier, Mr Ciesla, was employed by DGA Windows Australasia. He was directed to attend a construction site to place silicone on a window configuration across the second and third storeys of one of two four-storey houses. The construction was being managed by Mosman Bay Construction Pty Ltd, which engaged various contractors, including DGA, to undertake works on the houses.

On the day of the accident, there was no scaffolding in place on the houses to assist Mr Ciesla. He raised this with Mosman Bay's supervisor, who asked whether the task could be completed using a ladder. Mr Cielsa responded that he would 'give it a go'. After locating a ladder at the site, he positioned it vertically against a wall but could not find anything to tie the ladder to. It slipped out from underneath Mr Ciesla while he was working, causing him to fall approximately 3 metres onto concrete.

The decision

The court found that Mosman Bay as the principal contractor owed a duty of care to Mr Ciesla to use reasonable care to ensure that its systems of work for independent contractors were safe. Mosman Bay breached that duty because it was reasonably foreseeable that not having scaffolding set up in places where work at height was still to be completed would involve a risk of injury.

Similarly, DGA owed a duty of care to Mr Ciesla as his employer to take reasonable steps to provide a safe working environment. The court did not accept DGA's argument that it had discharged its duty by requiring in its contract with Mosman Bay that it provide scaffolding. An employer's obligation is not merely to provide a safe system of work, but to establish, maintain and enforce such a system. DGA failed to provide and erect scaffolding at the site, and failed to cause Mosman Bay to do the same. It also failed to provide Mr Ciesla with supervision, or properly instruct him, so that he did not start the work without scaffolding.

The court apportioned liability 40% to Mosman Bay and 60% to DGA. Total damages were also reduced by 25% for Mr Ciesla's contributory negligence.