By Gaby Grammeno Contributor

A building company specialising in bespoke luxury residential and commercial projects had a job requiring the partial demolition and extensive alterations, additions and associated excavation works on an existing house at a Sydney suburban site.

As principal contractor, the company engaged a civil contracting business to carry out the excavation works.

On 11 December 2020, an excavator was used to dig under the base of a semi-constructed wall. Three days later, while workers were cleaning sand out of the excavated trench in preparation for the footings of new wall sections, the wall collapsed onto the subcontractor’s 23-year-old leading hand, who fell on a large protruding metal screw piling.

It pierced his chest wall, left armpit and the back of his head, and caused severe bruising to his torso, arms and right shoulder. His injuries required surgical repair, including 13 staples in his head.

When a SafeWork NSW inspector visited the site in response to an incident notification concerning the wall collapse, the inspector observed there had been no bracing supporting the wall, and the injured man had not seen a Safe Work Method Statement for the task.

PREVIOUS WALL COLLAPSES

The investigation revealed a poor safety record with two previous partial wall collapses and nothing done to make the site safer.

Six weeks earlier on 30 October, the principal contractor had notified SafeWork of the partial collapse of a brick wall onto a neighbouring property, causing some damage. Photos of the incident site showed the wall had not been braced and existing structures and foundations had been undermined.

The incident prompted the issue of a Prohibition Notice by a SafeWork inspector, requiring measures to ensure the health and safety of workers and others. The principal contractor engaged an engineer to assess the structural integrity of the wall that had partly collapsed, but not the other walls on the site.

Neither the principal contractor nor the digging subcontractor took steps to brace or prop the other walls at the site, though they were unstable due to their age, condition and the lack of support from other parts of the structure.

Nor did either of them engage an engineer or other competent person to assess the stability of the remaining walls and foundations, and advise on managing the risks of collapse.

A toolbox talk was held at the site following the incident on 30 October, but the worker who was later badly injured still had concerns about site safety. In particular, the mortar in the old brick walls was often unstable. He’d raised this issue, but nothing was done.

On 1 December, another brick wall at the site partially collapsed. This incident a was not reported to SafeWork, and no bracing or propping was installed to support the remaining part of the wall.

The safety risk of collapsing masonry brick walls during excavation and demolition works was clear – workers and others at the site could be seriously injured or even die as a result.

SafeWork NSW prosecuted both the excavation business and its sole director for failing to comply with their work health and safety duties and exposing others to a risk of death or serious injury or illness.

The case was heard in the District Court of New South Wales.

IN COURT

Both the company and its director pleaded not guilty, so SafeWork NSW had to prove their offence was beyond reasonable doubt.

The evidence demonstrated that neither the principal contractor nor the digging subcontractor had developed documented safe work methods for the excavation and demolition processes before the commencement of any works at the site.

The principal contractor had prepared a WHS Management Plan after the first of the earlier wall collapses, but had not given the plan or other relevant information about the structure to the digging contractor.

Her Honour Judge Wendy Strathdee concluded that the digging contractor had taken no steps to inform itself of the hazards of the job before starting the demolition and excavation, and had made no attempt to establish a safe system of work, for example by developing a risk register or site-specific SWMS adequate to address the risks presented by the existing brick walls at the site.

Both the digging contractor business and its director had duties under WHS laws.

Judge Strathdee found that the digging contractor failed to undertake, or verify that the principal contractor had undertaken, an adequate risk assessment of all masonry brick walls at the site, and that it was reasonably practicable for it to have done so. The director had failed to ensure his company had proper processes to eliminate or minimise health and safety risks.

These failures were the substantial causes of the risk that resulted in the worker’s injuries.

The director had committed a Category 2 offence under the WHS Act by failing to exercise due diligence to ensure that his company complied with its obligations.

Judge Strathdee found that SafeWork had proved the offences. Both the digging contractor business and its director were convicted, and will be sentenced at a later date.

WHAT IT MEANS FOR EMPLOYERS

Directors and other officers of businesses need to take steps to ensure they’re exercising due diligence in ensuring the business is complying with its WHS obligations.

READ THE JUDGMENT

SafeWork NSW v Rahme Civil Pty Ltd [2024] NSWDC 231 (20 June 2024)