The risk of serious injury or death created by EK Fabrication Pty Ltd and site supervisor Rafayel El-Khoury – requiring workers to manually lift the 119kg beam – was “blindingly” obvious, according to NSW District Court Judge Wendy Strathdee.

Before being injured, the worker raised concerns on multiple occasions that a beam was too heavy to be lifted manually, and that rain was exacerbating the risks, but EK directed workers to proceed, the judge found.

Judge Strathdee said the businesses and the site supervisor showed a “flagrant disregard” for the safety of their workers, and despite the businesses showing they would have difficulty paying the fine, there was a “significant” need for specific deterrence to be reflected in the penalty, she found.

The incident

In March 2017, EK workers installing steel beams at an ADCO Constructions Pty Ltd construction site in Kellyville were told by their foreman that the job was behind schedule and the company was under pressure to complete it.

The foreman told them that while ADCO had arranged a crane for the site for the next day, they couldn’t wait and needed to lift the eight-metre-long structural beam to roof-height by hand.

When the worker raised concerns, the foreman said the crane wasn’t required because they could use a Genie mechanical lift to position the beam.

The worker and the foreman were on the top of a ladder on either end of the beam, raised 3.6 metres in the air by the lift, when the foreman dropped his end of the beam, causing it to fall onto the worker’s shoulders and the worker to fall three metres.

He sustained a compression fracture in his spine and suffered a 33 per cent loss of anterior vertebral body height. He was not able to return to work.

The judgement

EK pleaded guilty to breaching sections 19 and 32 of the NSW WHS Act in exposing the worker to the risk of death or serious injury. El-Khoury pleaded guilty to breaching 27 in failing to exercise due diligence as an officer of the employer (PCBU) to ensure it complied with its health and safety duties.

Judge Strathdee noted that while El-Khoury was the site supervisor, he was also a corporate officer within the meaning of the Act because he made or participated in making decisions that affected the whole or a substantial part of the family business.

“The risk was obvious and blindingly so,” she said.

She found that of “considerable concern” was that workers were directed to proceed with the unsafe task after the worker complained twice.

“To place the schedule of the works ahead of the workers’ safety is unacceptable. The work of lifting the beam should have been stopped until the crane was available,” she said.

Further, the Genie lift was not used in accordance with the instruction manual or warning signage, given the load was not secured and it was used in wet, slippery weather.

“Had the beam been secured it may not have fallen onto [the worker’s] shoulder,” the Judge said.

“Even more deplorable is that the task that the workers were required to do was done whilst standing on ladders and then lifting a 119kg steel beam above their heads in the rain,” she added.

“It is hard to imagine a more dangerous method of installation of the beam.”

Judge Strathdee found appropriate fines for EK and El-Khoury were $240,000 and $20,000 respectively, before reducing them by 25 per cent to $180,000 and $15,000 for their guilty pleas. She did not make an order for costs on the basis that the parties “may have some difficulty in paying a fine imposed”.

How we can help

For more information on Health, Safety and Wellbeing support and assistance please contact our HSW team on 03 8662 5333 or email us at hsw@victorianchamber.com.au to discuss how we can assist.

R v EK Fabrication Pty Limited; R v Rafayel El-Khoury [2020]