PCBU still liable after delegation of WHS obligations to principal

A recent case, Betterlay Brick and Block Laying Pty Ltd v Williamson [2018] QDC 172, has provided a timely reminder about a PCBU’s ongoing obligations when attempting to delegate WHS responsibilities. The judge rejected the argument of Betterlay, a PCBU, that it was entitled to rely on a principal contractor who agreed to undertake work on Betterlay’s behalf.

Decision in the first instance

In December 2014, a block wall erected by Betterlay Brick and Block Laying Pty Ltd at a Mt Cotton Constructions Pty Ltd refurbishment site in Queensland collapsed onto a subcontractor, pinning him to his elevated work platform and injuring him.

A Workplace Health and Safety Queensland investigation found that Betterlay had not inserted the necessary steel reinforcing into the wall, creating the risk of it falling without warning, and it was charged with breaching sections 19(2) and 33 of the Queensland WHS Act.

In the first instance Magistrate Louise Shepherd found that Betterlay had breached its WHS obligations and fined it $35,000 in late 2017.

Appeal

Betterlay appealed and argued that the lower court had erred in finding that it failed to ensure, so far as was reasonably practicable, that the safety of ’other persons’ wasn’t put at risk by the work it carried out on 2 December 2014, the day the wall collapsed, and for the four days after Betterlay erected it.

Betterlay’s director alleged that, on 28 November 2014, the site supervisor pressured him to come to the site to finish the wall. He stated that a representative of MCC told him that MCC would perform and take responsibility for the steel reinforcing work to speed up the process. It followed, according to the Betterlay director, that it was MCC’s responsibility to ensure the steel was inserted into the wall, and MCC should have arranged an engineer’s inspection before allowing the wall to be core-filled that day.

The appeal court rejected this argument, noting that the site supervisor denied offering to perform the task, and finding that regardless of this supposed denial, Betterlay still had a duty to ensure the work was performed correctly, saying:

[The Betterlay director’s] sole job on the work site was to build the block walls and the block walls were required to be built in a way that was safe for workers and other people visiting the site” ; and

“Section 14 of the [WHS] Act provides that the duty is non-delegable. Even if there was an offer by MCC to assist in finishing the walls or to put in the steel reinforcing, the obligation was still on [Betterlay] to ensure there was steel reinforcing in the wall before it was core-filled and [Betterlay] failed in that duty.

The Judge found the breach occurred on 28 November 2014 – when Betterlay built the wall and last attended the site – and not when the wall collapsed the following week, as alleged by WHSQ .