The University of Newcastle
LEGL6004: Workplace Health and Safety Law 2018 Assignment 1
Due Date: 27 April 2018 (5PM)
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Gardens-R-Us Pty Ltd operates a ‘garden renovation’ business around the Newcastle and Lake Macquarie area. The company provides basic landscaping, lawn mowing, pruning, and weeding services for a variety of commercial and domestic dwellings. The company guarantees its customers that each renovation will be completed in under 4 hours. If this does not occur, customers are entitled to a full refund. The company’s head office is located in Adamstown and employees attend this site once each day to collect any necessary tools and materials and complete any required paperwork.
In January 2017, Gardens-R-Us Pty Ltd employs Eugene Williams to undertake lawn mowing duties. Eugene has recently graduated from high-school and this is his first job. At the same time, Gardens-R-Us Pty Ltd employs Spencer Fillip to provide pruning and weeding services. Spencer has recently graduated from the same high-school as Eugene, and the boys are elated to start their careers together. During Eugene and Spencer’s first week, the boys are emailed a copy of Gardens-R-Us Pty Ltd’s written safety policy. This document is over 1000 pages in length and neither Eugene or Spencer bother to read it. The boys do not receive any other training or information apart from being introduced to Thom Roskill on their first day of work. Thom is another employee of Gardens-R-Us Pty Ltd and has been with the company for two years. Björn Kaas, the manager of Gardens-R-Us Pty Ltd, tells the boys that Thom will be responsible for supervising their daily work. Eugene, feeling anxious about completing his duties within the 4 hour time frame, asks Thom if he can provide any additional guidance or advice about the work. Thom simply states “you boys know how to mow some lawns and pull some weeds – it’s common-sense really. Just get the job done and the boss will be happy”. He does, however, tell the boys “you should probably wear boots and gardening gloves if you want to look the part”. During their first month on the job, Eugene and Spencer prove to be an impressive team and complete all required renovations on time. They only see Thom on two occasions where the job requires the installation of a water feature or similar design item.
In February 2017, Gardens-R-Us Pty Ltd decides to try and attract more customers and increase its profits by cutting the timeframe for each renovation in half. The boys manage to adjust to this new timeframe and Eugene discovers that he is able to mow the lawns at a much quicker speed if he pushes the machine whilst running barefoot. On occasion, Björn attends a work site to ensure sufficient progress is being made. On his third visit, Björn notices Eugene’s lack of suitable footwear. Outraged by what he sees, Björn screams a number of expletives at Eugene. The following day, Björn re-sends the company’s written safety policy to Eugene’s email address.
In March 2017, after two months of mowing lawns for Gardens-R-Us Pty Ltd, Eugene begins to feel a sharp pain in his left shoulder and upper back. He considers asking Spencer if they can switch duties every now and again so that he can have a break from the constant pushing and pulling motion, however, Eugene decides that changing things around might create a risk that the boys would be unable to complete the renovations in the required timeframe.
In April 2017, Eugene is routinely clearing some wet grass out of the lawn mower whilst completing a job at Caves Beach. Without warning, Eugene’s right foot becomes caught in the mower’s blades. The mower is still switched on at this stage and the blade tip velocity of the high powered mower is 480km/hr. Eugene receives multiple lacerations to his foot and two of his toes are amputated. Quite upset by the whole experience, Eugene immediately resigns. The following week, Gardens-R-Us Pty Ltd implements a new policy involving random checks once per month that all workers are wearing appropriate safety gear.
Two weeks after Eugene is injured, Björn decides to renovate the company’s head office. At the back of the office is a shed containing various tools and materials that employees may need to take with them to a renovation job. Inspired by a recent episode of Grand Designs, Björn approves the removal of the basic wooden door to the shed and arranges for it to be replaced with a more unique door consisting of elaborate engravings, decorative nails, and a sensor which causes the door to automatically open and close whenever an employee comes or goes. Björn is frugal in nature. Despite the company’s recent increase in profits as a result of the reduced renovation timeframes, Björn therefore decides to engage his younger brother, Sven to complete the installation. Sven considers himself quite the handy-man but he has never installed a door before.
Just as Sven is finishing up the installation work, Eugene attends the company’s head office to meet up with Spencer after work. While waiting for Spencer to finish completing some paper work, Eugene admires the intricate design of the new door, remarking to Sven that it is ‘simply exquisite’. Without warning, there is a loud cracking noise and the door falls on top of Eugene. It is later revealed that the screws used by Sven were insufficient to hold the heavy door in place. As a result of being crushed under the weight of the door, Eugene sustains fractures to his pelvis and sacrum. It is only a matter of luck that he is not killed. Whilst being treated for these injuries, Eugene is also diagnosed with shoulder tendonitis caused by the repetitive movement of pushing and pulling the lawn mower.
Part I – 2500 Words
In this fact scenario discuss the possible liability of:
(i) Gardens-R-Us Pty Ltd;
(ii) Björn Kaas; and
(iii) Sven Kaas
under the Work Health and Safety Act 2011 (NSW) for the injuries suffered by Eugene Williams. In your discussion determine what you think might be an appropriate penalty under the legislation for any breach.
Part II – 500 Words
Has Gardens-R-Us Pty Ltd breached the Work Health and Safety Regulation 2017 (NSW)?