Bustin' Free Earthworks Pty Ltd (Defendant)
Representation: Counsel: Mr David Jordan appeared for the Prosecutor
Mr R Reitano appeared for the defendant
Source
Original judgment source is linked above.
Catchwords
Crimes (Sentencing Procedure) Act 1999Fines Act 1996Bustin' Free Earthworks Pty Ltd (Defendant)
Representation: Counsel: Mr David Jordan appeared for the ProsecutorMr R Reitano appeared for the defendant
Judgment (7 paragraphs)
[1]
Solicitors: Safework NSW Legal Services for the prosecutor; Messenger & Messenger for the defendant
File Number(s): 2016/195844
[2]
Charge and plea
Bustin' Free Earthworks Pty Ltd is charged that on 29 January 2015 at Hobson Close, Eglinton (the Site), contrary to s 32 of the Work Health and Safety Act 2011, it breached a duty imposed on it by s 19(1). It has pleaded guilty.
[3]
The evidence
The plaintiff tendered a bundle of documents that became Exhibit PX 1.
The defendant tendered a statement of Mr Young, Exhibit DX 1, and a bundle of documents, Exhibit DX 2. Mr Young was present in Court for the hearing and not required for cross-examination.
At this point I note that Mr Jordan, Counsel for the prosecutor, acknowledged that the defendant's evidence disclosed a strong subjective case in its favour.
[4]
The facts
At all material times the defendant conducted a business or undertaking performing earthworks, including the excavation and installation of sewer lines.
On 11 December 2014 the defendant was contracted by Bathurst Regional Council to undertake work in the form of the excavation and installation of 937 metre sewer main at the Site. It was part of works in a residential development.
The contracted work involved trenching, laying of sewer lines and covering the trenches after the lines had been laid.
Mr Young was the onsite manager of the defendant's operations at the Site, made decisions in relation to the work methods employed at the Site, and directed the defendant's employees and other workers contracted to the defendant to perform work at the Site on behalf of the defendant. Mr Young was the controlling mind of the defendant company.
At all material times Benjamin Naylor was self-employed as a labourer sub-contracted by the defendant to perform labouring work at the Site. The main duty of Mr Naylor was the performance of labouring work, including assisting other personnel engaged with the laying of sewer lines.
Prior to commencing the contracted work, Mr Young was aware that it was "high risk construction work" because there would be trench excavation at a depth greater than 1.5 metres. Mr Young, prior to commencement of the contracted work, understood that the required trenching might be as much as 5 to 6 metres deep.
There was a risk of workers suffering serious injury or death as a result of collapse if the trench walls were not supported
By 29 January 2015, workers employed and engaged by the defendant at the Site created a trench that was opened to approximate dimensions of 45 metres in length, 3.1 metres wide and varying depths up to 5.9 metres from the original ground level.
At one part of the trench, a single shoring box was placed in the bottom of the trench with a second, incompatible, smaller shoring box resting unsecured on its top. The remainder of the trench remained unsupported. With these two boxes, the top of the trench was still above their height.
The system of work on 29 January 2015 was for Mr Naylor and Mr Young to lay pipes in the trench from within the shoring boxes, climb out of the trench, have the boxes moved further along the trench a distance equivalent to their length, then re-enter the box and continue working.
Lasers were used to indicate the level to lay the pipes. At one point, dirt fell onto a laser and buried it. At this point, Mr Young and Mr Naylor were in the shoring box and about 25 metres from where the laser was buried. Mr Young told the excavator operator, Mr Hurst, to stop excavating. Mr Young left the shoring box and walked along the trench to the point where the laser was buried. He started to dig to try to locate the laser. Mr Naylor had followed Mr Young and both were moving soil to try to find the laser.
While they were digging for the laser, the trench wall collapsed on Mr Naylor and Mr Young. The right leg of Mr Young was trapped whilst Mr Naylor was completely buried.
Immediately before the collapse, Mr Young said to Mr Naylor, "This is too dangerous. We need to go."
I am not satisfied beyond reasonable doubt that when he was in the trench prior to this point, Mr Young's mind was directed to this danger. He was aware of the risk of trench collapse and its potential consequences. That had been addressed at two toolbox talks that morning. In fact, the second toolbox talk was directed at the area at or near where the trench collapsed. At that point the trench had been excavated near some recently laid road and kerbing and guttering. It would not have been practical at that point to take the measure of benching the trench without digging up recently laid kerbing and guttering. Mr Young took the decision not to dig up that kerbing and guttering and accordingly not to bench. He decided to rely on the use of the shoring boxes as the safety measure.
Following the incident, workers at the Site contacted emergency services and then entered the trench to help free both Mr Naylor and Mr Young. Mr Young was dug out by the workers. It took emergency services about four hours to safely remove Mr Naylor.
Mr Young received several fractures ribs, lacerations and a punctured lung. He returned to restricted duties following a two week absence.
Mr Naylor suffered a dislocated shoulder, lacerations and injuries to his right leg. He had approximately six weeks' absence from work.
The defendant had not sought a geotechnical report to be prepared before commencing the excavation of the trench, or at any time prior to the collapse. A report would have provided information on the stability and safety of the excavation; details on the soil conditions; advice on shoring or trench support requirements; information on long term effects on stability and safety of the excavation.
The only mechanism used to secure the stability of the trench was the shoring boxes from which Mr Young and Mr Naylor worked, laying pipes
The defendant had a Safe Work Method Statement (SWMS) dated 23 January 2015 which listed potential risks and control measures for excavation work. The SWMS was signed by the workers including Mr Naylor.
On the day of the incident, Mr Young conducted toolbox talks with the workers. The risk of working in a deep trench was discussed along with the danger of working near overhead lines which were present. The toolbox talk was documented and all attendees signed the register.
The sides of the trench were not correctly supported, benched or battered when the excavation was 1.5m deep or greater.
There was at the time a relevant Code being the Excavation Work Code of Practice of July 2014. It sets out a number of requirements for excavation work. They include a need for planning, identifying hazards, assessing risks, determining control measures involving, if need be, external experts.
The Code notes that ground collapse is one of the primary risks to be controlled in excavation work. Collapse can occur quickly and without warning and can result in fatality from suffocation. The Code lists appropriate control measures.
Clause 305(2) of the Work Health and Safety Regulation 2011 requires a person conducting a business or undertaking to manage risks to health and safety including the risk of entrapment by collapse of an excavation.
Clause 306 (3) of the Regulation required the defendant in this case to minimise risk of collapse by shoring, benching or battering.
Following the incident, a Prohibition and an Improvement notice were issued. Both were complied with.
[5]
The sentencing process
I bear in mind several matters. I bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act 1999. I bear in mind the purposes of the Work Health and Safety Legislation, in particular ensuring the safety, health and welfare of workers and others on workplace premises. I bear in mind any relevant aggravating and mitigating factors, including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act so far as any of those may be relevant.
I start my analysis with a consideration of the gravity of the offence. This may be determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk.
Foreseeability of risk of injury was plain. Ground collapse in excavation work is a notorious risk and this has been known for a long time. It is spelled out in the Code. It was heightened in this case by the depth of the trench, about 4 to 5 metres, being considerably in excess of 1.5 m, the depth at which the Legislature describes the work as "high risk construction work" - Reg 291 of the Work Health and Safety Regulation 2011. The defendant was aware of these matters.
In the event of the risk occurring, foreseeability of the consequences was also plain. The foreseeable consequences included serious injury and/or death. Again, that is something that has been known for a long time and is also spelled out in the Code. This was also known to the defendant.
It may be noted that though serious injury or death are foreseeable consequences, the likelihood of such consequences occurring is not as high as in some other types of occupation such as, for example, working around loads being moved by cranes or around moving machinery or with electricity or at heights.
There were measures reasonably available to the defendant which, if implemented, would have avoided this risk. The risk relied on in the particulars annexed to the Summons was a risk of serious injury or death as a result of "being engulfed in the trench that was not properly secured from collapsing".
Some of the matters in the agreed statement of facts may be put to one side as they do not bear on the risk on which the prosecution proceeds. For example, matters going to risk of falling into the trench or being struck by something falling into it or lack of exclusion zone or lack of signage.
The measures that were reasonably available to the defendant are spelled out in [13] of the particulars to the Summons. In brief, they include:
failure to arrange for an appropriate geotechnical report;
failure to ensure the trench was properly benched, battered or shored;
failure to ensure the provision and proper use of appropriate shoring boxes when working in the trench.
By reason of the above matters and other matters I mention hereafter, this a breach towards the lower end of mid-range of seriousness.
There are other matters to take into account.
Cases of this nature are not coming before this Court with the same frequency as cases involving electrocution and electric shock, falls on building sites, objects falling on building sites, injuries from moving machinery. This observation is supported by prosecution searches for similar cases revealing one only decided by the Industrial Court of NSW in 2012 - Inspector Christensen v Wadwell Group Pty Limited [2012] NSWIRComm 126. This may be because the processes are well established, the risks well known and the preventative measures well known and relatively simple.
I think it is fair to say that these other cases merit a higher level of general deterrence than does a case of this nature. That is not to say that general deterrence does not play a real and significant part in the assessment of penalty in this case. Failure to take it into account in an appropriate way would send a wrong message to those operating in the industry.
The defendant had a safe work method statement before the accident and it was adequate to meet the exigencies of this case - Exhibit DX 2, p46. The problem is that, in the course of doing the work, especially looking for the buried laser, it was overlooked. It was a "one-off" type of neglect in the form of oversight or inattention by the defendant. It was not in any way a systemic failure. This is reinforced by the fact that the person responsible for implementing safety, Mr Young, a safety conscious person, was himself at risk in the task being done. The point of this is, I think, the defendant's attitude to safety before and after the accident is such that specific deterrence, whilst it is to be taken into account, is not as weighty a matter as it might otherwise be.
Also bearing on specific deterrence is the fact that this incident has resulted in what Counsel variously described as "significant" or "massive" financial cost to the defendant in that as a result of the incident, it lost the contract it had for this job with the local council. It also lost other contracts. The lost revenue has been assessed in excess of $2 million. That must plainly operate as a significant deterrent. Turnover has dropped from over $2.2 million in the financial year ended 30 June 2014 to under $800,000 in the following financial year. The defendant is a small, family company.
Further bearing on specific deterrence is the undoubted acceptance of responsibility and expressions of remorse by Mr Young. Paragraphs 77 to 79 of his statement set out in a full and frank way details of errors and omissions which he acknowledges and for which he accepts responsibility.
The defendant has undertaken a number of steps since the incident. It has complied with notices issued by SafeWork. Almost immediately following the incident, it engaged an outside safety consultant to review and update its safety procedures and documentation. That consultant provides the defendant with updates on an ongoing basis. Defendant's staff have attended safety courses since the incident.
[6]
orders
The defendant is convicted and fined the sum of $90,000 with a moiety to the Prosecutor.
The defendant is to pay the Prosecutor's costs in an agreed sum of $15,000.
[7]
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Decision last updated: 03 February 2017
The defendant has no prior conviction. It has been operating since 2010.
The defendant entered an early plea in this case. There is no reason it should not be entitled to the full discount of 25%.
The defendant has in all respects co-operated with SafeWork.
Financial evidence was led in this case. It was not for the purpose of seeking relief under the Fines Act 1996. If it was, it was not sufficient for that purpose. It was led rather for two other purposes. One was to demonstrate the financial cost to the defendant of the incident as being a factor going to specific deterrence and I have already dealt with that. The other was to demonstrate that the defendant has already been heavily punished financially and that should be brought to account. Mr Jordan, having undertaken researches, frankly acknowledged that this could be seen as extra curial punishment and taken into account. I do so.
The issue as to whether the prosecutor's costs of these proceedings to be paid by the defendant may be taken into account was the subject of extensive written submissions by the prosecutor. I do not need to enter upon that. I have in earlier cases expressed a view contrary to that of the prosecutor's submissions. The amount in this case, $15,000, is so relatively insignificant, it does not matter. It is but a small matter when compared to all the other considerations, both for and against the defendant, that it does not bear taking into account in this case.
The maximum penalty applicable in this case is the sum of $1.5 million. Undiscounted for the early plea, I think the appropriate penalty in this case is the sum of $120,000. That should be discounted by 25%. The appropriate fine therefore is $90,000.