The Case

WorkSafe Victoria v Horsham Back-hoe Hire Pty Ltd (2021)

Horsham Back-hoe Hire Pty Ltd (company) operates a demolition business. As a small family-run company, a husband and wife were directors. The company secured a contract through a tender process to demolish a brick residential building in Mount Pleasant (site) after the dwelling had been damaged by fire.

In September 2019, the company began work on the site with two workers (one employee and a director of the company). It was understood that the demolition work was high risk, and could result in serious death or injury should safety precautions not be followed.

While excavating the site and sorting through the materials, one worker pushed over a timber structure that supported a brick wall. The brick wall then fell forwards, fatally crushing the director. This incident was captured on a neighbour’s security camera.

The Judgement

The company pleaded guilty to offences under sections 21(1) & 21(2)(c) of the Occupational Health and Safety Act 2004 (Vic) for failing to ensure the safety of employees and others.

The company accepted that it was reasonably practicable to have eliminated or reduced the risk to its employees. The Court gave the example of establishing and maintaining an exclusion zone around the live demolition area as a reasonably practicable safety measure.

When determining the sentence, the Court considered the following factors:

• the company pleaded guilty at an early stage and had no prior criminal history;
• the company immediately notified WorkSafe of the incident and cooperated with the investigation;
• following the incident, the company implemented extensive steps to retrain its staff and implement other additional safety measures;
• for several years before the incident, the company engaged a third party to provide and implement safety-related advice; and
• the company was generally a good corporate citizen that had contributed significantly to its local community for many years.

The Court also acknowledged that the death of the director had severe consequences for the family and the business. The unique circumstances of this case demonstrated that the incident itself was punishment to a certain extent and had some relevance to the penalty provided. After pleading guilty, the company was fined $100,000 and ordered to pay costs of $4,213.

The Lessons

All organisations are required to implement reasonably practicable safety procedures and ensure that they are effective to control risks to health and safety, particularly in the case where the risk can cause serious injury or death. Even though the deceased in this case was the director and owner of the business, the company was still charged and fined for a failure to ensure safety.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.