SafeWork NSW v Bustin’ Free Earthworks Pty Ltd (2017)

Facts

Bustin’ Free Earthworks Pty Ltd (Company) was a small, family building business that specialised in earthworks. At the time of the incident, the Company was engaged in excavation and sewerage installation.

Mr Young, the onsite manager of the Company’s operations and the controlling mind of the company, and Mr Naylor, a self-employed labourer subcontracted by the Company, were involved in the excavation work.

Mr Young and Mr Naylor were constructing a trench of 45 metres in length, 3.1 metres wide and varying depths of up to 5.9 metres from the original ground level. The two workers were using a shoring box throughout the excavation and lasers to chart the excavation. When dirt fell and buried the laser 25 metres from the shoring box, Mr Young and Mr Naylor left the shoring box to recover the laser. As they were uncovering earth, the trench wall collapsed, trapping Mr Young’s leg and completely burying Mr Naylor. Both men were later recovered from the trench and treated for their injuries.

Judgment

The Company pleaded guilty to a breach of the general duty of care owed under the Work Health & Safety Act 2011 (NSW). The Court noted the following aggravating factors of the offence:

1. The likelihood of a trench collapse was reasonably foreseeable. SafeWork NSW had published the Excavation Work Code of Practice of July 2014, which identified trench collapses as a common risk.

2. The likelihood of this risk was increased by the depth of the trench. The depth of 4-5 metres is described in the Work Health and Safety Regulation 2011 as ‘high-risk construction work’.

3. The consequences of the trench collapsing were equally foreseeable. The Court considered ‘serious injury and/or death’ as reasonably foreseeable.

4. There were reasonably available control measures. If the Company had implemented these controls, it could have avoided the risk. Examples of controls the Company could have, but did not, implement include:

• seeking geotechnical support;
• correctly supporting, benching or battering the sides of the trench; and
• properly using shoring boxes.

When determining sentencing, the Court recognised how incidents of trench collapse were infrequent compared to electrocution, falls on building sites and injuries from moving machinery. Therefore, in the Court’s opinion, there was not as high of a level of deterrence required in comparison to the more common risks that resulted in injuries.

The Court also recognised the following as factors capable of mitigating the sentence:

• Mr Young accepted responsibility and displayed signs of remorse;
• the Company had taken a number of steps since the incident in compliance with SafeWork NSW, and it has cooperated with the authority and engaged in safety procedure reviews;
• the Company had no prior convictions and entered an early guilty plea; and
• the incident resulted in a significant financial cost to the Company, as it lost its contract with the local council and turnover dropped by more than $2.2 million in the financial year ending 30 June 2014.

The Court noted that the maximum penalty available was $1.5 million. Given the circumstances, it set the penalty at $120,000. However, there was a discount of 25% due to the early guilty plea, making the final penalty $90,000.

Lessons

This case is a reminder to all businesses to understand the importance of Codes of Practice and the steps that must be implemented to control risks, particularly when undertaking high-risk construction work.

An interesting aspect of the decision was the Court’s preparedness to compare the frequency of other more common incidents to those of trench collapses. The Court took this into account in assessing the appropriate penalty.

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.