Scaffold Over the Street and a Liquidated Damages Threat
A 6-storey office refurbishment in George Town uses a frame scaffold erected by three general workers over a weekend to reach the fourth-floor façade. The scaffold is 18 m high, tied to the building at only two points, has a working platform of loose planks with a 400 mm gap at the lift shaft, no toe boards, and guardrails only on the outside at 0.6 m. Two workers are removing cladding while standing on the top guardrail to reach a bracket. The site supervisor says the scaffold was 'checked by the lorry driver' and no handover certificate exists. A DOSH inspector arrives after a public complaint. The project director asks you, as the newly appointed SHO, to 'get the inspector to allow work to continue because the crane is booked for tomorrow and the client will impose liquidated damages of RM20,000 per day.'
1. Identify the main breaches and state what you would do in the first hour after the inspector arrives. Would you support the project director's request?
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Main breaches. The scaffold was erected by general workers, not a competent scaffolder; there is no design, inspection or handover certificate. It is tied at only two points for an 18 m height, the platform has a 400 mm gap, toe boards are missing, and the outer guardrail is only 0.6 m high rather than a proper top rail and mid-rail. Standing on the top guardrail to reach a bracket is a fall from height with no fall protection. These breach the FMA 1967 building operations regulations and OSHA 1994 s.15; the public complaint also engages the duty to protect non-employees.
First hour. Stop the work, get the two workers off the scaffold, barricade the area below, and exclude pedestrian traffic. Do not alter or dismantle the scaffold before the inspector has seen it. Take photographs, note the tie positions and platform gaps, identify the erectors and supervisor, and secure documents. Brief the project director factually and cooperate with the inspector.
The director's request. I would not support it. Liquidated damages and a booked crane are commercial pressures, not a defence. If the inspector issues a prohibition notice, work must not resume until the scaffold is rebuilt and certified. Allowing continued work would expose workers to a foreseeable fatal fall and expose the company and me to liability.
2. Set out the legal basis and the enforcement options available to the inspector. What is the significance of the missing handover certificate?
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Legal basis. The refurbishment is a building operation under the Factories and Machinery Act 1967. The building operations regulations require scaffolds to be of sound design, erected, altered and dismantled by competent persons, properly tied, fully boarded, with guardrails and toe boards, and inspected before use and at required intervals. OSHA 1994 s.15 requires the employer to ensure safety so far as is practicable; the duty extends to protecting the public.
Enforcement. The inspector can prohibit the use of the scaffold or stop the work immediately where there is imminent danger, require remedial work by improvement notice, and prosecute for the breaches. The inspector may also require the scaffold to be re-erected by a competent scaffolder and re-inspected before use. The company should expect a follow-up visit and possible compounding or prosecution depending on the evidence.
Missing handover certificate. It is not a paperwork technicality. It is evidence that no competent person inspected and handed over the scaffold before use. Without it, the company cannot show the scaffold was safe at the point of use, and the supervisor's statement that the lorry driver checked it confirms there was no competent inspection. That strengthens the case for a prohibition notice and for management accountability.
3. Design a corrective action plan with owners and verification. How would you handle the supervisor who allowed this?
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Immediate (0–24 h). Keep the area barricaded, stop work, and arrange a competent scaffolder and temporary fall protection if access is essential. Check whether any other scaffold on site has the same defects.
Engineering (1–7 days). Re-erect or modify the scaffold to design: adequate ties, base plates, fully boarded platform, no gaps, top rail and mid-rail, toe boards, safe ladder access. Provide a rescue plan and anchor points for fall arrest where required.
Management. Introduce a scaffold permit and handover certificate; inspect before first use, after alteration, and at intervals not exceeding 7 days; record findings. Train supervisors on their role and on stopping unsafe work. Deal with the supervisor through a fair process: establish what he knew, what he was told and what pressure he was under; if he allowed workers to stand on the guardrail, that is a serious performance issue, but the root cause is the management system that supplied no competent scaffolder and no inspection.
Verification. Independent scaffold inspection, photographs, signed handover, permit audit, and a follow-up DOSH visit. Report to the safety and health committee and close out actions with dates and owners.