In SafeWork NSW v Proflow Plumbing and Maintenance Pty Limited (2019), a company was convicted and fined $300,000 after an elderly man became trapped and died in a trench it excavated.

The District Court of New South Wales found that the employer had failed to instruct its workers not to leave the site until the trench had been barricaded or covered.

‘He only had to step out his back door’

Proflow was engaged to locate and repair sewage pipes at the back of the man’s home.

Its workers excavated a 1.5-metre-deep trench, then left it unguarded when they went to get materials to finish the repairs.

The resident, who was out at the time, returned to the property. The workers had planned to come back the following day.

Later that night the man entered the backyard and fell into the trench. He couldn’t get out.

His son found him the following morning.

The man died while emergency services were trying to rescue him. An autopsy revealed that the most likely cause of death was hypothermia. It was his 91st birthday.

“All of the family victims who gave Victim Impact Statements are haunted by the fact that their father, a proud, active and loving family man, died an agonising and degrading death over several hours, a death which was completely preventable,” Judge David Russell said.

“[He] only had to step out his back door … to be close to the unguarded trench.”

Inadequate instruction and supervision to blame

The court found that Proflow’s work vehicle had materials such as star pickets and barrier mesh which could have been used to cordon off the area around the trench. Also plywood could have been bought and cut to cover the trench.

“Proflow did not adequately instruct and supervise its employees in relation to ensuring that workers did not leave the site unless and until the trench was fenced, barricaded or covered and safety signs were erected to prevent persons accessing the trench work site,” Judge Russell said.

Proflow pleaded guilty to breaching the NSW Work Health and Safety Act 2011 for exposing the man to a risk of death or serious injury.

Judge Russell said an appropriate fine was $400,000, which he reduced by 25% for Proflow’s guilty plea. The company was also ordered to pay $26,400 for the prosecutor’s costs.

Since the incident, Proflow has purchased 1.8-metre-high temporary fencing and safety signs to erect at worksites to prevent persons entering its work areas. It has also implemented new Safe Work Method Statements (SWMSs) to include site security and fencing around its trenches and excavations.