Details of successful prosecution against E186540

Incident description

The defendant held duties under s. 28 of the Work Health and Safety Act 2011 as a worker. The defendant was employed as a site supervisor for a company constructing a sewer pump station at a housing estate. The work involved installing a large tank in an excavation. After installation, all excavations, including the area around the storage tank, were backfilled to ground level.

On 5 August 2013, the defendant and another worker were working inside a tank. While inside it, an excavator operator, under instruction form the defendant was backfilling around the excavation. A large piece of clay (approximately 280kg), rolled from the bucket of the excavator, fell into the tank and struck the other worker. He sustained fractures to his left ankle, right knee, cheekbone and damage to his eye socket.

The defendant was aware that it was not normal practice to backfill around a tank while workers were inside it, but considered it was a low risk that dirt would fall into the tank. The company had systems which provided controls, however relied on the expertise and supervision of the defendant to ensure that all risks were assessed and control measures put in place. The defendant had been employed in the industry for 19 years and was a site supervisor for 10 years.

Court result

The defendant pleaded guilty in the Beaudesert Magistrates Court on 18 November 2015 to breaching s. 32 of the Work Health and Safety Act 2011, having failed to meet his work health and safety duties and was sentenced.

Magistrate Kharlet made a s.239 order that the defendant not offend against the Work Health and Safety Act 2011 for a period of 12 months, with a recognisance in the sum of $5000. No conviction was recorded.

In reaching a decision, the Magistrate took into account that the defendant was an experienced worker in a supervisory role and ought to have known of the dangers posed when directing the excavator to work in proximity to the excavation.

In deciding penalty, Magistrate Kharlet 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 waste services industry where there is exposure to risks from fall of earth or clay during excavation or backfill operations, 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 injury from being struck with fall of earth or clay, obligation holders should consider:

• Work Health and Safety Act 2011
• How to manage work health and safety risks code of practice 2021 (PDF, 0.65 MB)
• Managing risks of plant in the workplace code of practice 2021 (PDF, 1.57 MB)

Details