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February 2020

Elderly man falls into a trench excavated by a plumbing company

Elderly man falls into a trench excavated by a plumbing company

Case

SafeWork NSW v Proflow Plumbing and Maintenance Pty Limited (2019)

Proflow Plumbing and Maintenance Pty Limited (company) specialised in providing plumbing and maintenance services. The company was engaged to repair a blockage in the sewage pipes at a residential premises in Glenmore Park, which was the home of Mr Leslie James Sloan. Mr Sloan was 90 years old and lived alone, although his two adult sons visited daily to assist him as he had limited mobility.

On 20 July 2017, the workers of the company excavated a trench in an undercover outdoor living area. The trench was approximately 3.5 metres in length, 1.5 metres deep and 450mm wide. On the same day, Mr Sloan left the residence in the morning and the workers left the residence around 1pm to get materials to finish the repairs. The trench was left uncovered and no barricade was erected at that time. After an hour or so, Mr Sloan returned and remained at the residence alone that night. The workers returned to the house with materials shortly after Mr Sloan returned and saw that there was no car in the driveway and the gates were closed. The workers left, intending to finish the job the next morning.

Sometime during that night or the next morning of 21 July 2017, Mr Sloan entered the backyard and fell into the trench. During the early morning, the temperatures were as low as 6.2 degrees Celsius. Mr Sloan was found by one of his sons when he arrived in the morning to celebrate his birthday. Mr Sloan was found face up, covered in mud and wedged deep within the trench, only in a singlet, underwear and one sock. He was still alive when he was found, but he passed away during rescue efforts by emergency services. It was found that the most likely cause of death was hypothermia.

Judgment

The company entered a guilty plea for failing to comply with its work health and safety duty under section 19(2) of the Work Health and Safety Act 2011 (Act), thereby exposing an individual to a risk of death or serious injury contrary to s 32 of the Act (Category 2 offence). The District Court found the company’s level of culpability to be in the mid-range after considering the following:

  • the risk was readily foreseeable, and attention was drawn to such risk in the guidance material;
  • the likelihood of the risk occurring was significant given that the work was carried out at the residence of a 90-year-old man who lived alone, and he only had to step out his back door onto the undercover area to be close to the trench;
  • the potential consequences of the risk were catastrophic and included death;
  • there were available steps to eliminate or minimise the risk;
  • the burden or inconvenience of steps to eliminate or minimise the risk was minimal;
  • the company had no documented safety system and there was no evidence of any training given to its employees;
  • the death of Mr Sloan resulted from the conduct of the company; and
  • the maximum penalty for the offence is a fine of $1,500,000, which reflects the seriousness of the offence.

The company was convicted and ordered to pay a fine of $400,000, which was reduced to $300,000 to reflect the guilty plea.

Lessons

This case is a reminder that employers’ duty under the Act extends to ensuring members of the public are not exposed to health and safety risks. Employers should be taking all reasonable steps to ensure their workplaces are free from risks to the health and safety of not only their workers but also any other individuals who may be in the vicinity of the site.

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