Protecting the General Public and a Lesson in Careful Reading

28 April 2017

In October 2013, a large boom collapsed on a New South Wales construction site, seriously injuring the director of Regal Contracting – a company which the Principal, Rawson Homes, had contracted to assist with excavation work.

In the ensuing SafeWork proceedings, the Court shed some light on obligations owed by Principals under the Work Health and Safety Act (“the Act”).

SafeWork’s claim against Mr Homes was brought under section 19(2) of the Act, which places an obligation on a Principal to ensure the health and safety of ‘other persons’. These ‘other persons’, SafeWork argued, included Regal Contracting.

The District Court ultimately found that ‘other persons’ did not include workers at all, but rather, and put quite simply, anyone else around or near a construction site.

The duty to protect that arises under section 19(2), the Court held, was neither as broad nor as burdensome as the corresponding section 19(1) which dealt explicitly with workers. With this in mind, it begs the question as to why SafeWork would attempt to proceed on unsteady grounds.

In any case, the outcome of this claim still provides us with a few takeaway points: 

1.   Principals have an obligation to protect the general public from the dangers of a job site – although       this obligation is not as stringent as the OH&S obligations put on protecting workers;

2.   There may be a vacancy within SafeWork’s legal team.

Timothy Ashton of Hentys Lawyers has over 30 years of experience in workers compensation, industrial relations and discrimination claims and proceedings, and works for a significant number of multi-national companies and household names. Please contact Timothy for advice by sending an email to hjk@hentys.com.au.