The defendant company held duties under s.19 (1) of the Work Health and Safety Act 2011. It undertook construction work, including civil drainage and concrete projects, road construction and earthmoving equipment hire.
The defendant's workers were involved in excavation of a trench to lay sewer pipes. Another trench was located adjacent to the trench excavation work being carried out. The spoil was along half the length of the north side of the trench. A truck driver engaged by the defendant, was instructed to pass a tool from a worker inside the trench to the excavator operator on the side of the trench. As he approached the excavator, the trench collapsed engulfing him in the spoil and side of the trench. Emergency services took some time to release him. He sustained fractures to his ribs, back and pelvis, displaced shoulder, an injury to his sternum and right wrist, eye haemorrhage, collapsed right lung and nerve damage to his back.
The defendant pleaded guilty in the Magistrates Court at Emerald on 22 May 2017 to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet its work health and safety duties and was sentenced.
Magistrate Clarke fined the defendant $75 000 and ordered professional and court costs totaling $1500. The court made an order that no conviction be recorded.
In reaching his decision, Magistrate Clarke took into account the worker's injuries, his age at the time (51 years) and his ongoing treatment.
The court acknowledged that it was clear that the defendant had not followed the Codes of Practice and had relied on the principal contractor's systems. In mitigation the defendant's support of the injured worker through financial contributions and fundraising events, the downturn in the local economy and loss of local council contract was taken into account.
In handing down penalty Magistrate Clarke identified that this was a breach involving exposure to a significant risk to more than one worker. This risk was foreseeable and there were inadequate measures put in place by the defendant, such as shoring or benching. The court also took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered an early plea of guilty.
Considerations for prevention
(commentary under this heading is not part of the court's decision)
When working in the construction industry where there is exposure to risks from falling into an excavation and being trapped by a collapse, duty holders should apply a risk management approach to ensure the selection of suitable control measures.
Risk management involves identifying the hazards, evaluating the consequences and likelihood of harm that may result from the hazard, deciding and implementing control measures to prevent or minimise the level of the risk from the hazard and monitoring the effectiveness of the control measures to ensure they remain working correctly.
When deciding and implementing control measures associated with the risk of serious injury or death, obligation holders should consider:
- Work Health and Safety Act 2011
- Work Health and Safety Regulation 2011
- Excavation Work Code of Practice 2021 (PDF, 1.9 MB)
- How to manage work health and safety risks Code of Practice 2021 (PDF, 0.65 MB)
- Date of offence:
- Fractures to ribs, back and pelvis, displaced shoulder, injury to sternum and right wrist, eye haemorrhage, collapsed lung and nerve damage to back
- Emerald Magistrates Court
- Magistrate Jeff Clarke
- s.32 of the duty under s.19 Work Health and Safety Act 2011
- Decision date:
- $75 000
- Maximum Penalty:
- $1 500 000
- Conviction recorded:
- CIS event number: