Details of successful prosecution against E236520

Incident description

The defendant, a sole trader, carried out brick and block laying. He held duties under s.19(2)of the Work Health and Safety Act 2011 being a person conducting a business who must ensure, so far as is reasonably practicable, the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business.

He was a contractor working on construction of a two-storey duplex. He engaged subcontractor brick/block layers to assist him.

On 14 November 2016 a 32-year-old subcontracted labourer's assistant working under the direction of a carpentry contractor at the site, was injured. The injured worker was working with a carpenter using string line to mark out proposed floor framing. The defendant and other brick/block layers were erecting a block firewall in the vicinity.

The wall had been erected to a height of approximately 2.8 metres and 11 metres in length. The injured worker was working adjacent to the wall as it was being erected.

During the morning the weather changed and it became quite windy. At about 11.00 am a large gust came through. The blockwork collapsed in the direction of the injured worker. He was trapped under the masonry. Other workers removed the blocks and administered first aid. Each block weighed approximately 13.2 kg and it was calculated that per square metre the blockwork would weigh an estimated 165 kg. The wall had not been braced or temporarily reinforced. No exclusion zone was established during the works.

The injured worker sustained a crushed L 3 vertebra. He spent approximately 5 days in hospital. He did not have surgery.

Court result

On 19 March 2019, the defendant pleaded guilty in the Ipswich Magistrates Court 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 Sturgess fined him $18,000 and ordered professional and court costs totalling $845.80. Her Honour also imposed a s.239 Court ordered undertaking for a period of 18 months, with a recognisance in the sum of $12,000 to be forfeited if convicted of an offence within this period. The court ordered that no conviction be recorded.

The Court saw the incident as avoidable. The likelihood of the risk was foreseeable in the absence of bracing or temporary support prior to the wall being core filled. Her Honour stated the defendant had put himself, his workers and others at risk and steps to minimise or remove the risk were inexpensive and not overly burdensome or inconvenient.

The Court was told that the brick/block layers had asked the carpentry workers to leave the area during the construction of the wall, but they continued with their work. The defendant had worked in construction since he was approximately 15 years old, becoming licensed as a block layer after arriving from Poland. He had operated his business since 2009. The Court heard the defendant had struggled to find consistent work and his income had decreased. He produced tax records to confirm he had an outstanding debt to the tax office of almost $10 000 for last financial quarter. Her Honour accepted the defendant suffered from some financial hardship.

In deciding penalty, Magistrate Sturgess took into account the defendant was remorseful, had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered an early plea of guilty.

Her Honour stated that the maximum penalties reflect the seriousness of Work Health and Safety breaches. The Court acknowledged that a breach under the Act can lead to serious and permanent injuries and outcomes for workers and others, some with lifelong consequences.

Her Honour considered the mitigatory factors and noted general deterrence to be important. The Court moderated the fine by incorporating a Court ordered undertaking with a recognisance.

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 masonry walls constructed without temporary support or bracing prior to core filling, duty holders should consider the following:

1. Implementation of a mandatory exclusion zone for non-essential workers during construction of dividing walls.
2. Inclusion of appropriate control measures to take account of lower stability, stiffness and strength of the newly constructed masonry in accordance with AS 3700- Masonry Structures
3. Pending curing and core filling, install temporary bracing or other form of stabilizer as necessary to resist wind and other lateral forces
4. Provide adequate instruction and supervision of workers to ensure they are aware for the need for temporary bracing.

Other Sources:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011
• Australian Standard AS 3700-2011 Masonry Structures
• NSW Government Guide to 'Masonry Wall Safety During Construction Work'

Details