Details of successful prosecution against E209636

Incident description

The defendant held duties under s.19 (2) of the Work Health and Safety Act 2011 in relation to work it was contracted to perform at an independent living, rental accommodation facility for seniors and the disabled. This included widening pathways within the facility by 600mm, which required the excavation and removal of dirt to a depth of 100mm along the edge of an original path.

On 14 February 2015, a resident of the facility was walking along the pathway with assistance of a mobility aid (walker). The wheel of the walker went over the edge of the excavation causing her to lose balance and fall on her right side. She sustained a fracture to the right femoral neck and extensive bruising around the pelvis. She was taken to hospital and died 20 days later of complications arising from her injuries.

There were no control measures in place around the excavation at the time of the incident. The letting agent/caretaker of the facility and a body corporate member had raised concerns with the defendant over the use of safety mesh and star pickets due to the possibility of wheels of mobility aids getting caught in the mesh (the defendant had been made aware of the residents' care needs). The defendant did not implement any alternative control to address this trip/fall hazard.

Court result

The defendant pleaded guilty in the Townsville Magistrates Court on 14 February 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 Warrington, in giving her decision stated –

• the defendant failed to implement and review control measures;
• it was aware of the class of persons likely to be in the vicinity of the excavation;
• the risk was obvious;
• there were a number of reasonably practicable controls that may have been implemented, however the defendant company did nothing

Her Honour acknowledged the emotional impact that the death had on the family, taking into account a victim impact statement.

In deciding penalty, her Honour acknowledged, there was a need for specific and general deterrence in the penalty imposed as well as an element of denunciation as no controls were implemented. Her Honour also stated the purpose of the sentence was to punish the defendant for its breach which resulted in a resident of an aged care residential complex being seriously injured and ultimately dying from complications from those injuries. Her Honour noted the defendant's level of blameworthiness was at the higher end as it had no controls in place. She fined the defendant $120 000.

The court in ordering that no conviction be recorded took into account the defendant's cooperation with the investigation, its early plea of guilty, that it had no previous convictions for work health and safety breaches and that it had, post incident, made improvements to its work systems.

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 to members of the public from trips and falls, 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)

Details