IntraAust Properties Pty Ltd (the Offender) is a commercial construction company that was engaged as the principal contractor of a construction project in Carrum Downs (the workplace).

The Offender assigned an employee as the Supervisor and the Health and Safety Representative for the workplace.

The Offender engaged a provider of labour hire services to supply it with several labour hire workers to work at the workplace, including the Injured Person (IP). The IP is an experienced and qualified carpenter, who had worked for several construction companies.

On 7 March 2024, the day of the incident, a concrete pour was scheduled to occur at the workplace. A large gum tree branch, which was around 4.5 metres above the ground, needed to be cut down to provide access for the concrete truck (the task). The tree branch was 6 metres in length and approximately 20cms in diameter.

The day before, the Supervisor and the IP discussed how the concrete truck was going to access the area where the slab was going to be poured. To undertake the task, it was determined that the IP would bring his chainsaw to the workplace to cut the branch.

The IP told the Supervisor that he had experience in cutting tree branches near his home. There was no discussion about how the IP would access the tree branch nor any safety issues that might arise from him cutting down the tree branch.

The IP was not a qualified arborist or tree removal specialist. The Supervisor did not complete a Safe Work Method Statement (SWMS) for the task and no arrangements were made to organise a temporary work platform, such as an elevated work platform (EWP), for the IP to use while performing the task.

In performing the task, using a chainsaw, there was a risk of serious injury or death due to:

being struck by a tree branch, or part thereof (risk 1); and
falling from height (risk 2).

On the day of the incident, the Supervisor instructed the electrician onsite to disconnect a low hanging electrical wire that was near the gum tree, so the concrete truck could safely pass underneath it. The Supervisor then instructed workers, including the IP, to make the site accessible for the concrete truck.

The IP set up a 3.7-metre A-Frame ladder and attempted to perform the task using a chainsaw while standing high up on the ladder. The IP cut sections of the branch, which fell to the ground. Whilst cutting another section of the tree branch, it swung downwards and knocked the ladder, which caused the IP to fall head first to the ground.

The IP suffered a spinal column dislocation and was rendered a paraplegic as a result of the incident. He is now confined to a wheelchair.

The Offender failed, so far as was reasonably practicable, to reduce the risk by providing or maintaining systems of work, specifically:

It failed to reduce the risk of being struck by a tree branch, or part thereof, by engaging a qualified arborist or tree removal specialist to perform the task.
It failed to reduce the risk of falling from height by:
1. engaging a qualified arborist or tree removal specialist to perform the task; or
2. providing a temporary work platform, such as an EWP, for employees to use while performing the task; or
3. providing a telescopic long chainsaw for employees to use while performing the task.

The Offender also failed to prepare a SWMS for the task, which was high risk construction work, before the work commenced.

The Offender pleaded guilty and was sentenced, with conviction, to pay a fine of $150,000 and to pay costs of $13,335.00

In sentencing the Offender the Court noted:

The Victim Impact Statements each reflect the devastating and horrific impact the incident has had on the IP and his family;
The offences are risk-based, not outcome-based;
General deterrence will assume considerable significance;
The objective seriousness of the offending is the most important factor in determining the appropriate outcome and mitigating factors should play a subsidiary role;
Objective seriousness is not determined by consequence, but the extent of the duty holder’s failure to meet duty under Act;
In assessing the objective seriousness, the Court was satisfied it was a serious example of the offence;
The offending was a substantial departure from the statutory duty owed;
The task of cutting a tree branch is dangerous, the Offender must have known the IP was going to perform the task, and did not arrange for it to be done safely; and
Mitigating factors were taken into account that:
- the Offender had no prior convictions;
- the Offender was cooperative with WorkSafe;
- the Offender implemented significant safety improvements since the incident, on its own accord;
- the Offender was a small business; and
- there was a delay that had occurred.

Pursuant to s 6AAA of the Sentencing Act 1991, but for the plea of guilty, the Offender would have been sentenced with conviction, to a fine of $220,000.