By Michael Selinger
In SafeWork NSW vs ADN Investments Pty Ltd & Adnan Yassine (2019), the NSW District Court fined an excavation contractor $180,000 and its director $30,000 for failing to implement recommended safety measures to prevent the collapse of an adjacent building.
The collapse of the adjacent building occurred in circumstances where a building contractor called Erector Group Pty Ltd, instructed ADN to undertake demolition, bulk excavation and detailed excavation at the site.
Erector was the principal contractor at the site and had engaged Geo Environmental Engineering to conduct a geo technical investigation into the site.
Geo Environmental Engineering informed Erector that the proposed development at the site was feasible and recommended that further investigation be conducted once contractors and structural engineers finalised the excavation plan for the foundations.
A structural engineer was engaged to provide technical drawings and a proposed residential development plan for the excavation work at the site. That plan stipulated:
- The size, type and extent of the foundations of the adjacent building was to be determined and verified by a structural engineer, geo technical engineer, builder and other relevant contractors prior to any construction work commencing.
- Prior to any construction work commencing and once the footings of the adjacent building were exposed, that an engineer should be consulted to develop and implement appropriate support mechanisms for the footing, such as underpinning the footing and/or constructing a shoring wall that could support a load from the adjacent building.
- Erector should be responsible for maintaining excavations in a stable condition without affecting adjacent building or services and, where required provide temporary shoring to the sides of footing excavations for the adjacent building.
- Excavation should not extend below a line dipping at 45 degrees for clay and 30 degrees for sand and away from the nearest corner of any existing footings.
- At no stage must the base of the shoring wall capping beam be lower than the base of the adjacent building foundation or else a high level shoring solution may be required.
Before commencing the excavation work at the site ADN provided Erector with a safe work method statement (SWMS) which included a procedure for the excavation work. This SWMS identified structural collapse of the adjacent building as a risk and stipulated control measure to deal with these risks being:
- appropriate shoring measures should be implemented and the supervisor should take note of the depth of the excavation; and
- advice to be sought from a geotechnical engineer prior to deep excavations close to the adjacent building or structure, on appropriate shoring measures.
On the day of the incident, ADN commenced excavation work at the site using an excavator.
ADN was instructed by Erector to excavate to “the bottom of the capping beam” and told that a failure to excavate to that depth would cause a delay in construction and may result in liquidated damages against ADN.
Sometime between 10am and 12pm, Mr Yassine commenced excavating the area next to the adjacent building without any shoring measures being implemented. The excavation work was completed at 5pm. At that point, ADN had excavated 450mm below the capping beam level of the adjacent building’s brick walls and footing. At approximately 8pm the building and the adjacent walls of the building were starting to shake and looked likely to collapse and by 9:20pm the adjacent building had partially collapsed.
The Court heard evidence from Mr Yassine that he personally operated the excavation machine and acknowledged that he did not undertake the work in a diligent manner. He said that he felt pressured by Erector to do what it asked and he said that he now appreciated that pressure put on him was not a reason to ignore safety.
The Court made findings that the risk of death or serious injury flowing from ADN’s breaches were significant and manifested in the eventual collapse of the adjoining building. The Court found that both the company and the director were directly involved in creating the risk by digging the clay out underneath the brick wall and footings of the adjoining building.
The Court considered that it must have been immediately apparent to ADN that the excavation went below the bottom row of bricks that there was nothing to then support the wall vertically or laterally.
The Court noted that there was publicly available information as to how to eliminate the risk of collapse and that the defendant should have known of the specific risk given the geotechnical report. The Court found that ADN had completely ignored its safety obligations.
The Court considered that the level of ADN and Mr Yassine’s culpability was at the high end of the mid-range.
As a result, the Court imposed a fine of $240,000 on ADN, reduced to $180,000 due to a plea of guilty. The director Mr Yassine was fined $50,000, which was reduced by 40% due to the plea of guilty, the assistance provided to the regulator and Court, and his willingness to assist the prosecutor by giving evidence in other proceedings. Mr Yassine was personally ordered to pay a fine of $30,000.
This case is a clear example of the failure to put safety ahead of profits. There was pressure placed on the excavator operator to proceed as quickly as possible which resulted in a complete disregard for the risk of collapse.
All businesses need to ensure that where a safe work method has been developed that it must be implemented in order to reduce the risk of harm. No shortcuts should be taken.