Details of successful prosecution against E254123

Incident description

The defendant company held duties under s20(2) of the Work Health and Safety Act 2011('WHS Act') and was charged with an offence pursuant to s32.

This charge arose from an incident on 27 February 2018, at a housing construction site in Balmoral. The defendant was the principal contractor and builder in control of the site, responsible for planning work and arranging for various trades to attend. It engaged a sub-contractor to undertake work, including block-laying for retaining walls.

A trench was excavated to permit a block retaining wall to be erected. The trench was approximately 11.5 metres long, between 2.3 metres to 4 metres wide and, at its deepest approximately 1.9 metres. There was no barricade or barrier around the trench.

The site was steep, sloping away from the street frontage towards a gully at the rear of the block. Access to the rear of the property was difficult, with workers accessing it via a small earthen pathway on the left-hand side of the property immediately beside the trench. The width of the pathway from the edge of the trench to the boundary fence ranged from between approximately 600mm to 900mm.

On 27 February 2018 a number of workers employed by the sub-contractor used the pathway to access the rear of the property to retrieve equipment following earlier works. While walking along the pathway carrying an aluminium plank, a 21-year-old worker employed by the sub-contractor slipped and fell into the unbarricaded trench. He was impaled on an uncapped vertical steel reinforcing starter bar located in the trench and sustained a serious groin and lower stomach penetration injury. He was subsequently diagnosed with PTSD and was assessed as having a partial and permanent incapacity for work due to his psychological symptoms, causing him to reportedly be unable to return to his former role.

The only persons present on the incident date were workers of the sub-contractor, undertaking the block-laying. The defendant had a site supervisor allocated to the site who was not present.

A documented 'site evaluation' was carried out by the defendant prior to works commencing, which identified the site as a “steep narrow allotment” with “very difficult site access” but did not refer to any control measures required to address risks which may present from conducting works on the site. A barricade was erected post-incident in response to a WHSQ issued improvement notice, along with scaffolding stairs which allowed workers to access the rear of the site.

Court result

At the time of sentencing the defendant was under external administration and working towards winding up. There was no appearance for it at the return of the summons or at the mention on 18 October 2019. The prosecution was granted leave to proceed ex parte.

Magistrate Springer fined the defendant $110,000 and ordered professional and court costs totalling $1,097.95. A conviction was recorded.

In sentencing, her Honour noted a site evaluation was conducted by the defendant which identified this was a steep site with difficult access. Given the narrow access to the rear of the site, an alternative method of access ought to have been found and the trench should have been fenced off. The risk was clearly foreseeable, with falls from height being well-known. There were simple, reasonably practicable steps the defendant could have taken, including fencing the trench. The trench was 1.9 metres deep, which posed a serious risk even in the absence of the uncapped bar. The subject risk could have been easily minimised. The defendant responded promptly by making the site safe, but this was only after the incident. There was nothing to suggest a complaint was made by a subcontractor.

Her Honour noted that the incident resulted in an extremely unfortunate outcome for a young man. While medical records and reports obtained reveal he was extremely fortunate to not have sustained any major pelvic or abdominal trauma, he was subsequently diagnosed with Post-traumatic Stress Disorder and was assessed as having a partial and permanent incapacity for work due to his psychological symptoms, causing him to reportedly be unable to return to his former role.

In deciding penalty, Magistrate Springer took into account the maximum penalty of $1.5 million and that the defendant had not been prosecuted previously for any offence against the WHS Act. It was acknowledged that the defendant was under external administration and, while personal deterrence was almost irrelevant, general deterrence was important. The defendant was not a small construction company, as evident from the QBCC licence search results tendered. It was noted that attention to safety should have been paramount across its numerous job sites. While there was no evidence available regarding the defendant's capacity to pay, the status of the company suggested it may be experiencing financial difficulties. There was little in the way of further information available, with the court not having the benefit of submissions from the defendant.

Details