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District Court 2 February 2017

SafeWork NSW v Bustin’ Free Earthworks Pty Ltd

[2017] NSWDC 9

Other
CRIME WORK HEALTH AND SAFETY EARTHWORKS INCLUDING EXCAVATION LABOURER SUB CONTRACTED BY THE DEFENDANT HIGH RISK CONSTRUCTION WORK

Citation: SafeWork NSW v Bustin' Free Earthworks Pty Ltd [2017] NSWDC 9
Court: District Court of New South Wales
Date: 2 February 2017
Judge: Kearns DCJ

Background

The defendant company conducted a business performing earthworks, including excavation and sewer line installation. In December 2014, it was contracted by Bathurst Regional Council to excavate and install a 937-metre sewer main at a residential development site at Eglinton. The work required deep trenching, in some places reaching depths of nearly six metres.

On 29 January 2015, the site manager and a subcontracted labourer entered an unsupported section of the trench to locate a buried laser level. The trench walls collapsed. The site manager sustained fractured ribs, lacerations, and a punctured lung. The labourer was completely buried and took emergency services approximately four hours to free. He suffered a dislocated shoulder, lacerations, and leg injuries.

SafeWork NSW prosecuted the defendant company under section 32 of the Work Health and Safety Act 2011, alleging a breach of the primary duty of care owed to workers under section 19(1). The defendant pleaded guilty.

  • The appropriate penalty for a breach of the primary WHS duty under section 19(1), prosecuted under section 32 of the Work Health and Safety Act 2011
  • Where the offence sat on the range of seriousness, having regard to foreseeability of risk and available control measures
  • What weight to give mitigating factors including the guilty plea, the defendant's subjective circumstances, remediation steps, and extra-curial punishment already suffered
  • Whether the financial consequences already borne by the defendant should be taken into account in sentencing

Decision

Kearns DCJ began by assessing the gravity of the offence. The risk of trench collapse in deep excavation is a well-known and foreseeable hazard, expressly addressed in the relevant Code of Practice. The trench depth of up to 5.9 metres significantly exceeded the 1.5-metre threshold at which the legislation classifies excavation as "high risk construction work." The defendant's controlling mind, the site manager, was aware of this risk and had discussed it in toolbox talks on the morning of the incident.

Despite that awareness, the trench was not adequately shored, benched, or battered as required by clause 306(3) of the Work Health and Safety Regulation 2011. No geotechnical report had been obtained. The shoring boxes in use were incompatible and covered only a small portion of the 45-metre trench. Critically, the two men entered the unsupported section of the trench to retrieve the laser, which lay outside the protection of the boxes. His Honour found that the site manager had not directed his mind to the specific danger in that moment, though he registered it immediately before the collapse.

His Honour placed the offence at the lower end of the mid-range of seriousness. He noted that, while serious injury or death were foreseeable consequences, the probability of those consequences materialising was not as high as in some other cases. He took into account that this was a small business, the defendant had no prior convictions, it had co-operated fully with SafeWork, it had engaged a safety consultant and undertaken training following the incident, and its controlling mind had himself been injured in the collapse. The financial burden already imposed on the defendant by the incident was treated as a form of extra-curial punishment.

The undiscounted penalty was set at $120,000. A 25% discount was applied for the early guilty plea, reducing the fine to $90,000. The maximum penalty for the offence was $1.5 million.

Orders Made

  • The defendant was convicted and fined $90,000, with a moiety (half) payable to the prosecutor.
  • The defendant was ordered to pay the prosecutor's costs in the agreed sum of $15,000.

Key Takeaways

  • The District Court confirmed that ground collapse in deep trench excavation is a plainly foreseeable risk, and awareness of that risk by a defendant's controlling mind is a significant factor in assessing the gravity of a WHS offence.
  • Under section 32 of the Work Health and Safety Act 2011, the maximum penalty for a breach of the primary duty by a corporation is $1.5 million; the sentencing court here applied a penalty of $120,000 (before discount) on the basis that the offence fell at the lower end of the mid-range of seriousness.
  • A 25% discount for an early guilty plea was applied in full, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999.
  • Financial consequences already suffered by a defendant as a direct result of the incident may be treated as extra-curial punishment and brought to account during sentencing.
  • Remediation steps taken after an incident, including engaging external safety consultants and completing training, were treated as relevant mitigating factors going to specific deterrence.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2011 (NSW), cll 291, 305(2), 306(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Fines Act 1996 (NSW)
- Excavation Work Code of Practice, July 2014

Cases:
- Inspector Christensen v Wadwell Group Pty Ltd [2012] NSWIRComm 126