Silent Vector Pty Ltd v Shepherd & Anor  WASCA 315
Keywords: Reasonably Practicable; Control; Contractor Safety Management
It is not my intention that every prosecution I look at in the Safety Case(s) series involves construction contractors working at heights, however, a good number of cases do seem to involve that scenario, and this is another one of them.
Silent Vector had control of a new building construction project.
Ian Stampaglia (Stampaglia), an employee of Coastal Contractors Pty Ltd (Coastal), was working on the project.
Silent Vector had contracted Coastal to provide roofing and plumbing services.
Stampaglia was seen by a Worksafe inspector working on the upper roof of the building. A parapet wall extended above the roof level. At some places it was over a metre above the roof level, but because the roof sloped, at the point where Stampaglia was working, the parapet wall only extended 400 mm above roof level.
The inspector gave uncontradicted evidence that Stampaglia was exposed to the risk of falling which could have led to serious injury. The minimum distance Stampaglia could fall was 3.6 m, but it was further in some cases depending on where he was working.
Stampaglia was not wearing a safety harness or fall-arrest equipment and there was no edge protection equipment to prevent him from falling. Stampaglia said he had a safety harness in his car which he did not use because there were no anchor points to attach his harness and he did not have the competency to install such anchor points. Previously, Stampaglia had looped his harness lanyards around the stud wall but could not have done that for the work he was performing when the inspector saw him.
The inspector gave evidence that edge-protection equipment to a height of 900 millimetres was readily available. Edge-protection systems, consisting of a top rail and mid rail and kickboard to a height of 900 millimetres, cost about $250 for 10 metres.
Silent Vector was convicted at first instance and appealed the decision. The grounds of appeal asserted that Silent Vector “did not know, nor ought to have known”:
Any person would be on the roof, or any work was going to be done on the roof, on the day
Either edge protection or a static line for a harness needed to be provided because:
Coastal had not asked for it before
Coastal had previously used their own safety equipment when working on the roof
Stampaglia had previously used his own safety equipment
Stampaglia could have attached to safety harness to suitable parts of the building
At one level, the appeal was successful. The Court found it was not reasonably practicable to have installed edge protection, because there was uncontradicted evidence that if edge protection had of been installed, Stampaglia would need to remove it to do his work:
That being so, it could not be said that an edge-protection system would have been practicable. 
However, the error in relation to edge protection did not mean the appeal was upheld, because there was no substantial miscarriage of justice:
The prosecution therefore established that it was practicable for the appellant to have ensured that fall-arrest equipment was used by Mr Stampaglia. This required anchor points to be installed, but the appellant did not ensure that these were installed. The use of the fall-arrest equipment would have afforded an inexpensive, and therefore practicable, protection against the risk of falling from the roof. 
An important question in the case is what Silent Vector “knew or ought to have known” .
The prosecution had to show Silent Vector knew about the risk or that a reasonable person in the same position would have appreciated or foreseen the probability of injury or harm to health occurring.
Relevantly, the court said Silent Vector knew edge protection could not be used when Coastal was installing the flashing. Knowing this:
a reasonable person in the position of the [Silent Vector] would have known that fall-arrest equipment would have to be used, and if any enquiry had been made of [Coastal, Silent Vector] would have learned that it was not possible to use the fall-arrest equipment when installing the flashing unless proper anchor points were installed. No enquiry was ever made by [Silent Vector]. 
While edge protection could not be used if the flashing was being installed, the evidence was Silent Vector did not know whether it had been installed:
Mr Hughes, who was the appellant's employee most concerned with the conduct of affairs on the site, said that he was not aware that the flashings had not been affixed and that he "thought" that the whole top roof had been completed and that was why the roofing contractors were "coming down to mesh the bottom roof". 
Mr Hughes did not give evidence that he thought that the flashings had been installed. His evidence was only that he thought the roof had been completed. In my opinion, even if he meant that he thought the flashing had been installed, this evidence is no answer to the charge. That evidence does not meet the point that a reasonable person in the position of the appellant via its employees ought to have known about the risk. Merely "thinking" that work has been done, without any factual foundation for forming that view, is not sufficient.  (my emphasis added)
The Court did suggest a hypothetical scenario whereby Silent Vector may have discharged its obligations:
If there had been evidence about safety meetings being held with [Coastal] concerning safety and concerning the steps to be taken … concerning safety, then this may have been significant evidence. Such a meeting may have resulted in assurances by [Coastal] to [Silent Vector] about steps it would take to ensure the safety of its workers. An item for discussion at such a meeting should have been about who would install anchor points for harnesses to be used by roof workers. That may have resulted in [Silent Vector] installing the anchor points or may have resulted in the [Coastal] promising to do so. If the latter, then [Silent Vector] would have been obliged to check to see that the promise had been fulfilled. If the anchor points had been installed and if [Silent Vector] then saw that safety procedures agreed to were being followed, then the fact that on one day when Mr Hughes was not in attendance the safety procedures were not followed, may not have afforded any evidence to sustain the charge.
On the evidence in this case, however, I find that the appellant did nothing. [22 – 23]
In the final result, the appeal was dismissed, and Silent Vector’s conviction upheld.
As with other cases in this series, while not express I think it is inferred in the case that Silent Vector had relevant expertise in construction and relevant knowledge about the risk of working at height. In this respect, parallels can be drawn with the ACR Roofing case.
The Court said:
A reasonable person in the position of [Silent Vector] would have known that there was a risk of severe injury which could easily occur if a person worked without any protection at all on the edge of a roof 3.6 metres above the next level. Such a person would have known that a harness would remove or mitigate the risk to injury. [Silent Vector] failed to ensure that this practicable method of removing or mitigating the risk was taken.  (my emphasis added)
The relevant phrase here is a reasonable person in the position of Silent Vector. It is possible to imagine circumstances where a principal would not appreciate the relevant hazards or the means to control them, when those factors are wholly within the competence and expertise of the contractor.
I think another important message from the case is the indication that:
Once the parties have agreed how hazards will be managed, and who will be responsible for managing the hazards; and
Once a principal has confirmed the contractor has put in place and is compliant with the controls,
it is not the responsibility of the principal to monitor the contractor’s performance.
Having agreed how safety will be managed, and confirming the agreed processes are in place, a “one-off departure” from those agreed processes, by a contractor will not necessarily mean the principal is liable.
Having said that, where, as in this case it appears the principal had a level of knowledge and expertise commensurate with the contractor, then the principal is certainly obliged to understand how the hazard to going to be controlled and to have a level of comfort that the controls are in place and effective. To quote from the Court:
Having the right intentional attitude to safety is not enough. The attitude must be backed up by action. 
You can read more articles in the Safety Case(s) series HERE.
This article represents a general discussion about legal principles. It is not specific advice, and you should seek your own legal advice in relation to your specific circumstances.