In the event of injury or death on a construction site, who is responsible?

Under Workplace Health & Safety Laws are you or the Principal Contractor responsible?

The Workplace Health and Safety Act 1995 (Qld) places significant obligations on “principal contractors” to ensure the safety of persons on a construction site.

In the event of death on the construction site caused by the failure of principal contractor’s to comply with its WH&S obligations and construction site deaths are caused, the principal contractor and its executive officers (executive officers may include directors and senior management) are liable for fines of up to $2 million and three years jail.

QuestionWho is the Principal Contractor under the WH&S Act?

AnswerCommon sense would suggest that the principal contractor is the builder you commissioned to do the work. However, that isn’t necessarily the case. As absurd as it might sound, you might be the principal contractor!

 The builder you appoint to undertake the construction work will usually be automatically treated as the principal contractor provided the construction work:

(a) does not involve demolition works or the removal of friable asbestos containing material; or

(b) is for the construction of a detached or semi-detached residential dwelling; or

(c) is estimated to cost less than $80,000.00.

This means that for all demolition work and asbestos handling work and all non-residential construction work over $80,000 the builder you appoint to do the work will not automatically be treated as the principal contractor under the WH&S Act.

Instead it is your responsibility to formally appoint your builder as the principal contractor.

You appoint a principal contractor by completing and submitting to the builder and your local WH&S Office before the construction work begins a Form 32a Notice of Appointment of Principal Contractor.


If you do not properly appoint a principal contractor, the person who commissioned the construction work (i.e. you), is taken to be principal contractor!

This means you and your executive officers will (unwittingly) assume the obligations of a principal contractor under the WH&S Act and the criminal and civil consequences that will arise in the event of injury or death on the construction site.

If you are about to start a building project at your site please talk to Corney & Lind about what you need to do to appoint a principal contractor.  Even if you properly appoint a principal contractor, there are still some WH&S obligations that you are required to comply with.

Talk to us about those obligations.  We can also advise you on some special conditions to insert into your building contract that will provide an added layer of protection in relation to WH&S obligations on the construction site.


Are you considering appointing a project manager but not a principal contractor for your next project?

It is not uncommon to appoint only a project manager and not a principal contractor (In such a scenario, your project manager on your behalf directly appoints all the individual tradespeople and suppliers for the project rather than the principal contractor sub-contracting the work).

Talk to Corney and Lind before you take this course of action as you may be assuming not only the WH&S obligations of a principal contractor but also liability for other common law claims.

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Increases to Workplace Health and Safety Penalties for Queensland

All jurisdictions (except Western Australian and Victoria) have adopted harmonised work health and safety legislation over the past five years. Under the Work Health and Safety Act 2011 (Cth) (‘WHSA’), recent decisions indicate courts are now more willing to impose higher range penalties for Workplace Health and Safety (‘WHS’) breaches.


Current Penalties

At present, these harmonised WHS legislation penalties come under three categories:

    1. Category One involves recklessly exposing an individual to risk of death or serious injury or illness, facing up to a $3 million penalty for corporations or $600,000 and five years imprisonment for officers.
    2. Category Two entails exposing individuals to risk of death or serious injury or illness, with corporations subject to a maximum $1.5 million of penalty or $300,000 for officers.
    3. Category Three is brought about where there has been failure to comply with Health and Safety duty, and involves a maximum $500,000 penalty for corporations and $100,000 for officers.


Large penalties imposed by State Courts

South Australia

On 19 April 2017, the South Australia District Court handed down its largest penalty to date of $650,000 under the WHSA.[1] In this case, the employer was charged with a Category two breach, even though the employee only suffered a wrist sprain as a result from the incident. The case involved an employee undertaking a new chemical waste product test process whom had been incorrectly advised regarding the temperature of the product during the distillation process. In opening the release valve, an explosive rush of air resulted and covered another employee in undistilled material.

In awarding the penalty, her Honour took into account: the aggravating factor of foreseeable risk of injury, inadequate response undertaken for a foreseen risk, systematic failure of employer to address the foreseeable risk, the potential of death or serious injury that may have manifested, neglect of well-known precautions to deal with significant risk of injury leading, prior contraventions by the defendant of Cth WHS legislation and prior instances of a similar incident.


New South Wales

On 5 May 2017, NSW handed down its largest penalty of $1 million under WHSA, where the employer was convicted of a category two offence.[2] The case involved the company’s blatant disregard for safety obligations when instructing a subcontractor to install angles on a window knowing the scaffolding outside could not be used without a person coming within three metres of high voltage power lines. In carrying out instructions, the worker then suffered severe electric shock and burns to 30% of his body when the angle being held by him came into contact with power lines.

In handing down the fine, His Honour took into account the factors such as: the risk was known to workers and had a high likelihood of occurring if control measures were not adopted, the risk likelihood was increased when handling tools within close proximity of power lines, the defendants knowledge of the risk, the gravity of significant risk including death, prior prohibitions by defendant on the same subject matter, the knowledge by the defendant of the task content and requirement of steps to eliminate and avoid risk with no steps undertaken to do so.


What does this mean for Queensland claimants?

The Queensland Government has recently announced a best practice review of Workplace Health and Safety Queensland in April 2017 and introduced a new criminal WHS offence of ‘negligence causing death’ in May 2017.

With the penalty increase handed down interstate, it is anticipated that prosecutions will rise and the court may become more willing to consider larger penalties when faced with serious breaches.

This serves as a reminder to duty holders that serious charges could be brought against them if they fail to take proactive steps to ensure health and safety of workers and can resulting in serious penalties