On 8 April 2022, following a five-day trial before His Honour Judge Smith in the District Court at Brisbane, Illawarra Enterprises (Qld) Pty Ltd (“the company”) and its director Michael Walsh, were each found guilty of breaching section 31 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with their respective health and safety duties pursuant to sections 19 and 27 of the Act. The company was fined $300 000. Mr Walsh was sentenced to 12 months imprisonment, wholly suspended for an operational period of 12 months. A conviction was recorded against each of the defendants.
The company conducted a block-laying business. The company was engaged to erect block retaining walls at a residential housing construction site at Balmoral (“the site”). The site inclined steeply from the roadway down to a gully at its rear. There were several areas of excavation on the site around the block retaining walls were being erected. One of the excavations (“the excavation”) ran along the boundary of the neighboring property, separated from the boundary by a narrow earthen path of 60-90 centimeters in width. The excavation was between 1.4 and 1.9 metres deep. An uncapped steel rio starter bar protruded vertically from the base of the excavation.
On 27 February 2018 a number of employees of the company, including bricklayers and labourers were onsite. Company director Michael Walsh was also present on site.
Walsh instructed some of the labourers to retrieve scaffolding and trestles from the rear of the site. They were instructed to move across the site via the narrow earthen path bordering the excavation. As the workers traversed the path, one worker slipped off the path, almost falling into the excavation where the uncapped steel reo bar was located.
This worker told Walsh what had occurred and indicated that the use of the earthen path as a thoroughfare was dangerous. Walsh disregarded the worker’s concerns and took no action.
Several minutes later, another worker was traversing the path while carrying a scaffold plank, when part of the path gave way under his feet. This worker fell into the excavation and was impaled on the uncapped steel reo bar.
Emergency services attended. The worker was transported to hospital with the bar in-situ. The bar was subsequently removed via a surgical procedure.
Both the defendant company and the defendant Walsh pleaded not guilty, and the matter proceeded to trial. Both defendants were convicted by jury on day 5 of the trial.
In sentencing the defendants, his Honour identified that it was the risk of death or serious injury presented by the conduct that underpinned the charge, and here the worker had sustained a serious injury, by way of impalement. His Honour observed that the defendant Walsh had been indifferent to the risk presented, even when expressly alerted to the risk by the first worker only a short time before the injured worker slipped and fell into the excavation. His Honour took into account that the injured worker would have suffered significant pain and suffering, although thankfully the worker had not sustained permanent injury.
Improvements to the company’s safety procedures were implemented soon after the incident, and the defendant Walsh also personally undertook training in regard to safety procedures and processes.
In determining the appropriate penalty his Honour had regard to the purposes of sentencing and the other principles set out in section 9 of the Penalties and Sentences Act 1992. His Honour observed that the defendant company was a small company operating on slim (if any) profit margin. But for this incident the company had a good safety record, and no prior convictions. His Honour noted that the defendant Walsh also had no previous convictions and had positive character references. Walsh had also written a letter of apology to the injured person and his Honour accepted him to be remorseful.
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Section 19 and 31 of the Work Health and Safety Act 2011
Section 27 and 31 of the Work Health and Safety Act 2011