The defendant company provided geotechnical advice and reports, in this case with respect to construction, in particular excavation works. It held duties under s.46 of the Work Health and Safety Act 2011, namely to consult with other duty holders having a duty in relation to the same matter.
Between October 2014 and June 2015, the defendant company was engaged to provide geotechnical advice in regards to a construction site. On three sides the site was adjacent to other properties, including residences. The construction itself included development of 32 residential dwellings, including carparks.
Numerous site visits were undertaken during this period. Representatives of the defendant liaised with the on site management and prepared reports in regards to the ongoing excavation works. On or about the 27 May 2015 a collapse of rock fabric occurred along the southern wall to the site. Notwithstanding, works were allowed to continue.
Four days later a more significant collapse occurred to the northern end of the site. The collapse included sections of blockwork, over 20 metres of boundary soil which included 2.5 metres of the land from the neighbouring property. No person was injured as a result of the collapse.
Expert opinion identified a lack of engineered ground supports to the excavated ground batters as the cause of the collapse. The defendant's consultation and co-ordination with site management was reactive as opposed to proactive and fell short of what would be considered reasonable.
The defendant pleaded guilty in the Brisbane Magistrates Court on 28 November 2017 to breaching s.46 of the Work Health and Safety Act 2011, having failed to meet its work health and safety duties and was sentenced.
Magistrate Shearer fined the defendant $8000 and ordered no conviction be recorded.
In reaching a decision, the Magistrate noted the vague contractual relationship between the defendant and other duty holders responsible for the project. He accepted the defendant had consulted, cooperated and coordinated activities with the site builder but that it failed to take any reasonable steps in light of the earlier collapse. Such steps could have included the establishment of an exclusion zone, a cease work order and referral to engineers for more extensive advice and recommendations.
In deciding penalty, Magistrate Shearer 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. He also identified that this defendant was one of a number of duty holders who held obligations on the project and that its role in coordinating activities was in some respects hampered by the behavior of others, including the builder.
Because the court regarded the offence as low on the scale of objective gravity, the circumstances saw no person exposed to risk, other duty holders could also have done a better job and the fact the defendant company had nothing but a good record, it was plainly entitled to an order that no conviction be recorded.
Considerations for prevention
(commentary under this heading is not part of the court's decision)
When working in the industry where there is exposure to risks from excavation 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 exposure to risk, 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)
- Date of offence:
- Brisbane Magistrates Court
- Mr Stuart Shearer
- s.46 Work Health and Safety Act 2011
- Decision date:
- $8,000 fine
- Maximum Penalty:
- Conviction recorded:
- CIS event number: