By Gaby Grammeno Contributor

The principal contractor for the site was convicted and fined earlier this year for its part in the same incident.

The job required the partial demolition and extensive alterations and addition to a house in a Sydney suburb. In December 2020, a partially excavated wall collapsed onto a 23-year-old worker, who had been cleaning sand out of the excavated trench in preparation for the footings of new wall sections.

He fell on a large protruding metal screw piling which 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.

Though there had been two previous partial wall collapses on the site, nothing had been done to make the work safer. There had been no bracing or props supporting the wall that collapsed on the worker, though its foundations had been undermined by the excavation, which was not adequately shored.

The injured worker had previously raised concerns about the unstable mortar in the old brick walls, but nothing was done.

 

In court 

The court’s judgment in this case was damning. The 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 site-specific SWMS adequate to address the risks presented by the walls.

The latest hearing was to decide on the appropriate sentence for the company and its director.

The Victim Impact Statement from the injured worker said that as a consequence of his injuries, he’d had to relearn how to do basic tasks and now lives with physical and psychological pain every day. He said that living with significant disability had made him undergo ‘a complete personality change to someone who he says no one wants to be around’. He has lost relationships with his partners and siblings.  

‘I have lost all future hopes and dreams, I have nothing to look forward to and no hope of returning to my pre-injury life.’

District Court Judge Wendy Strathdee thanked him for ‘having the strength and courage to put his feelings in writing, despite it being very hard to read. A young man has had his life taken away from him by an accident at work. This is a most tragic circumstance for him to find himself in, and I hope that as the days pass, his suffering diminishes’.

In sentencing, Judge Strathdee noted that the injury, emotional harm, loss or damage caused by the offence was substantial, and ‘simple remedial steps were available which would have completely avoided the risk’.

Such steps would have included regular inspections and documented risk assessments, warning workers of the risk, appropriate measures to address the risk and exclusion zones until such measures were in place, she said. Changes to walls or foundations should have been regularly checked and documented.

By way of mitigating factors, however, the defendant was a corporate citizen of good character, had shown remorse for the accident, made significant charitable donations and contributed to the community. She accepted that the business was unlikely to reoffend and had implemented some remedial measures demonstrating its commitment to improving its WHS systems.

However, she found it difficult to accept that the employer had demonstrated and accepted responsibility for the offence, adding that ‘[t]he nature of the offending, and the defendant’s unexplained absence from the liability trial, indicate to me that the fine for such serious breaches of the WHS legislation needs to reflect the seriousness of the offending’.

The court found the appropriate fines for the offence, taking into account the objective seriousness and the need for general deterrence, were $500,000 for the company and $100,000 for the director.

After reducing the fines by 20 percent for the business and 50 percent for the director in view of the mitigating factors, the company and its director were ordered to pay fines of $400,000 and $50,000 respectively, as well as the prosecutor’s costs.

 

What it means for employers

The case highlights ‘the need for caution on construction sites, including the obvious need to ensure people are not put in harm’s way when working in and around masonry brick walls during demolition and excavation works’. Disregard of such matters can result in heavy financial burdens for employers, as well as grievous consequences for workers.

 

Read the decision

SafeWork NSW v Rahme Civil Pty Ltd; SafeWork NSW v Rabih Rahme [2024] NSWDC 561