Working at height and the law: primary duties, litigation trends and risk-mitigation to-dos

Lawyers GEORGIE CHAPMAN and FLEUR McKAY-CALVERT — Partner and Special Counsel at HR Legal, respectively — set out working at height primary duties, litigation trends and some key risk-mitigation to-dos.

Falls from height remain one of Australia’s leading causes of workplace serious injury and death in the construction and industrial sector, and the legal stakes have never been higher. The human costs associated with such incidents, for both the worker and others in the workplace, cannot be overstated. Additionally, with industrial manslaughter offences now in force across every jurisdiction, a fatal fall can expose businesses and officers to multimillion-dollar penalties and even prison terms, where risks were not reasonably controlled.

If your business engages employees or contractors to work at height or supervise crews, it is critical that you are aware of your obligations and are proactively implementing measures to mitigate risks associated with working at height.

What are a business’s primary safety duties?

Under work health and safety (WHS) legislation, employers or persons conducting a business or undertaking (PCBUs) must provide and maintain, so far as is reasonably practicable, a working environment that is safe and free from risks to health.

In a nutshell, this requires employers and PCBUs to, among other things:

• identify the hazards (such as working from height);
• assess the risks to health and safety associated with those hazards;
• implement the highest reasonably practicable controls;
• ensure such controls are implemented under competent supervision; and
• review and verify that the controls work in practice.
   

Further, company officers must exercise all due diligence to ensure the PCBU is meeting its safety obligations — or face personal liability for the company’s failures.

As WHS is state and territory based, there are some differences in obligations depending on the jurisdiction. For national operators, this means the same type of failure/incident can attract varying penalties depending on location. As such, national operators are encouraged to align their safety standards to the highest requirements applicable in any jurisdiction in which they operate.

What trends are we seeing with falls from height?

Safe Work Australia data from 2023 reveals that falls from height in that year was the second highest contributor of worker fatalities across Australia. Further, cases over recent years have demonstrated a clear nationwide emphasis on preventing falls from heights, and in particular safety regulators’ increased appetite to prosecute for companies’ failure to implement basic safety controls.

In 2024, a Victorian transport company was fined $350,000 after an employee died after falling 3.9 metres due to defective guardrails. In its sentencing remarks, the court noted that an employer is required under safety legislation “to be proactive and imaginative in the identification of hazards in the workplace. In this case, the risks of a fall from height are well known. The risk of falling from the top of a trailer while inspecting the hatches is obvious.” The court further found that the employer never properly turned its mind to the issue of effective guardrails and “fell into something of a blind spot”. Had the employer not pleaded guilty to the charges, the court indicated that it would have imposed a fine of $500,000.

Cases such as this one send a clear message: where foreseeable fall hazards exist, appropriate controls must be implemented and enforced. Failure to do so will not only expose employees to very real risks to health and safety, it will also likely attract severe penalties, particularly where employees are injured or fatalities occur.

Further, with the introduction of industrial manslaughter in most jurisdictions, the potential penalties and potential risk of imprisonment of individuals is even greater.

To reduce the risks of imprisonment and heavy fines, it is essential that employers and PCBUs understand compliance with their health and safety obligations.

What about industrial manslaughter?

All Australian jurisdictions now have in place an offence of industrial manslaughter. While the specific definition of industrial manslaughter and the element of fault varies across Australian jurisdictions, industrial manslaughter is generally described as reckless or negligent conduct by an employer or business that causes the death of a worker or another person to whom a duty of care is owed.

Company officers can also be liable for workplace manslaughter.

Penalties can reach up to $20 million for corporations and up to 25 years’ imprisonment for individuals, depending on the jurisdiction.

**************************************************

Some key business to-dos

Where your business engages workers who work from height, there is no excuse for overlooking safety obligations — both the human and legal risks are far too great.

This means:

Plan and, where possible, eliminate the height task

✔ Challenge whether the job can be done from the ground or using prefabrication and mechanical aids. Elimination remains the most effective control.

Engineer out the risk

✔ Where elimination is not possible, install fixed edge protection, guardrails, and compliant scaffolds or platforms. Use safety mesh, certified anchor points and properly rated catch systems where prevention is not feasible. Courts repeatedly treat missing edge protection and defective guardrails as serious departures from duty.

Use a Safe Work Method Statement (SWMS) that fits the actual task and enforce it

✔ Generic paperwork is not enough. The SWMS must identify site-specific fall hazards, such as voids or brittle surfaces, and must be enforced in real time. If your SWMS calls for an elevating work platform, supervisors must stop work if it is not used.

Verify competency and supervise the work

✔ Do not assume that workers or labour hire personnel are trained for heights. Check qualifications, induct on the task, and maintain competent supervision. Courts expect PCBUs to guard against foreseeable risks from inexperience or disobedience where high-consequence hazards are involved.

Maintain plant and safety systems

✔ Adopt hazard-specific inspection and maintenance regimes for guardrails, anchor points, scaffolds and EWPs. ‘Assumed checks’ or general inspections are not enough when a failure could be fatal. Document each inspection and remove non-conforming equipment from service.

Prepare for rescue and emergencies

✔ Where fall-arrest systems are used, you must have a realistic, rehearsed rescue plan, fit-for-purpose equipment, and clear communications. Time matters in a suspension or high-access incident.

Measure, monitor and correct

✔ Use pre-start checks, supervisor verifications and audits to verify controls are in place. Treat non-conformances as learning events with corrective actions. The absence of implementation evidence is a repeated theme in prosecutions and sentencing remarks.

**************************************************

Image credit: iStock.com/CharlieChesvick. Stock image used is for illustrative purposes only.