Managers and supervisors can be at risk of personal liability for safety breaches, even if the employer is not prosecuted. Veil threat, you may think, that will never happen. The recent case of Perry v Carter says otherwise. The case serves as a powerful reminder that the more responsibility you have in the workplace, the more proactive you need to be about health and safety in the workplace.

The breach

The decision involved a site supervisor being prosecuted for a breach of ss 21(1)(a) and 63A of the Occupational Health, Safety and Welfare Act 1986 (SA) (Act) for a failure to take reasonable care to avoid adversely affecting the health or safety of workers. This case has broad implications, given the provisions are mirrored in the uniform work health and safety legislation (WHS legislation) that may be in force in your jurisdiction.

The facts

The site supervisor was responsible for the construction of warehouses using precast concrete panels. On 28 June 2011, he noticed that a panel had only one lifting and bracing point rather than the usual two. The site supervisor did not mention this to anyone at the site.

The crane lifted the panel into place and the site supervisor asked two workers to manually adjust it to the required position, which was normal practice. The site supervisor expected that the crane would continue to hold the panel in place during this adjustment. This did not occur. The panel was released and the site supervisor failed to notify the workers. The panel fell and crushed the cabin of a nearby truck. Fortunately the workers escaped without injury.

The issue

The site supervisor breached the Act through his failure to ensure that the panel was supported by:

  • a minimum of two supports in accordance with the approved code of practice
  • the crane, while the workers adjusted the panel's position, and
  • two braces, which was specified in the drawings for the panel's design plans.

The above actions were within the site supervisor's control and his lack of action ultimately led to the workers being exposed to a risk of serious injury or even death. As a result, he entered a plea of guilty to the charges.

The penalty

This was the site supervisor's first offence, so the maximum penalty he could receive was $10,000 (far less than the $300,000 currently applicable to individuals under the WHS legislation). The court imposed a penalty of $1,750 plus costs, taking into account the fact that the site supervisor had:

  • demonstrated genuine remorse
  • cooperated with the investigation
  • pleaded guilty to the offence, and
  • taken measures to ensure that the incident would not reoccur.

He was also required to undertake a construction safety supervisor's course.

The lesson

The case serves as a powerful reminder that the more responsibility you have in the workplace, the more proactive you need to be about health and safety in the workplace. If you see something that you believe is not safe, then you should raise it as an issue. This will demonstrate that you turned your mind to it in the event that it becomes a safety matter. When it comes to safety, protecting others is often the key to protecting yourself.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.