Details of successful prosecution against E197168

Incident description

The defendant company held duties under s.19(1) of the Work Health and Safety Act 2011 being a person conducting a business or undertaking, namely a plumbing business.

On 11 April, 2014 a 15 year old 1^st year apprentice plumber, was tasked with clearing soil from around underground power cables to expose them for further trench digging works to be carried out by an excavator. The cables were approximately 500mm below the surface and he was instructed to finish the job using hand tools to remove the remaining soil.  The work was in the near vicinity of an open trench that was approximately 2.6 metres deep and 2 metres wide with unstable/unsupported sides. He had finished clearing soil from around the cables and moved back toward and into the larger trench to move away from the approaching excavator. As he moved into the larger trench a large piece of concrete, approximately 400kg, fell from the side of the trench onto his leg. He sustained fracture injuries to his lower leg.

Court result

The defendant pleaded guilty in the Richlands Magistrates Court on 12 January 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 McLaughlin fined the defendant $40 000 and ordered professional and court costs totaling $1082.50. No conviction was recorded.

In reaching a decision, his Honour recognised that central to the offence was the defendant's failure to supervise a young worker. Magistrate McLaughlin acknowledged, and placed significant weight on the fact that the worker was instructed not to go in to an unstabilised trench, however he accepted that this was likely momentary inadvertence but did not diminish the need for the defendant to have provided adequate supervision.  His Honour also acknowledged that the defendant had prepared and instructed the worker in its safe work method statement which addressed the issue of unstabilised trenches (which were not to be entered).

His Honour noted the defendant was a small 'mum and dad' company with only one worker (the injured person) and he needed to take into account that fact when imposing penalty.

In deciding penalty, the court took the view that the matter was an early plea, the defendant had not been prosecuted previously for any work health and safety breach and had co-operated with the investigation.

Considerations for prevention

(commentary under this heading is not part of the court's decision)

When working in the plumbing industry where there is exposure to risks from fracture injuries from trench collapses, 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 death or serious injury from trench collapses or debris falling into a trench, obligation holders should consider:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011
• Children and Young Workers Code of Practice 2006 (PDF, 0.42 MB)
• Excavation work code of practice 2021 (PDF, 1.9 MB)

Details