Prosecution Details

Being a person that had, to any extent, control of a workplace where persons who were not its employees worked or were likely to be in the course of their work, did not take such measures as were practicable to ensure that the workplace was such that persons at the workplace were not exposed to hazards, and by that contravention caused the death of a person contrary to sections 22(1) and 22A(2) of the Occupational Safety and Health Act 1984.

As at 16 August 2013 (material date), the Accused was the trustee and legal owner of the Buller Road refuse site (refuse site), which was situated approximately 11 kilometres south-west of the Waroona town site along Buller Road.

Prior to the material date, the Accused contracted with a contractor to perform, manage and oversee the operational and day-to-day activities of the refuse site.

On the material date, the contractor was performing operational activities on the refuse site. Also present on the refuse site on the material date was the contractor’s 71 year old uncle (the uncle), the uncle was not formally employed by the contractor to work on the refuse site, but was permitted by the contractor to attend at the refuse site from time to time, and assist him with tasks at the refuse site.

The contractor was not employed by the Accused, however the Accused was aware that the uncle assisted the contractor at the refuse site from time to time, as employees of the Accused had witnessed the uncle operating machinery at the refuse site.

At the material date, the refuse site catered for general rubbish and the disposal and treatment of septic tank contents (septic waste). General rubbish was dumped into various sections depending on the type of material. Septic waste was discharged into a series of liquid waste ponds (ponds) for treatment inside a wastewater treatment compound (compound).

Description of the workplace

Prior to 2012, septic waste at the refuse site was discharged into and treated in two clay lined ponds (former ponds).

Due to increased demand and concerns about environmental damage, the Accused engaged a projects company to design a new liquid waste pond facility, comprising the compound and the ponds, which was approved in May 2009, and constructed by an earthmoving company in 2012.

The ponds, which replaced the former ponds, began operation on 30 June 2012.

The ponds were a series of five plastic lined ponds purposely designed to hold septic waste in a stabilization/evaporation pond system connected by pipes.

The ponds were designed such that waste truck drivers could dump septic waste into Pond 1 via a purpose built concrete ramp leading up to its northern edge. Ponds 1, 2 and 3 were designed to filter the septic waste using both evaporation and gravity fed filtration techniques. Pond 4 contained a grass wetland bio-filter to absorb the excess nutrient in the septic waste, and Pond 5 was used as a water reserve in winter.

At the material date, the compound was enclosed by a Cyclone wire fence, 2.5 metres high (fence), which, at the northern and southern ends of the fence, had lockable gates which were kept locked when the refuse site was not operating,   none of the ponds was individually fenced.

On the material date, the ponds contained septic waste of varying depths. The depth of septic waste in Pond 1 and the waste water in Pond 5 was up to 3 metres.  The depth of the septic waste in Pond 2 was up to 1.5 metres, and the depth of the septic waste in Pond 3 was up to one metre.  The depth of the septic waste in Pond 4, which contained the grass wetland bio-filter, was 0.5 metres.  If a person fell into Pond 1, Pond 2, Pond 3 or Pond 5, it would have been extremely difficult for the person to climb out, because the plastic geo-membrane liner in each pond was slippery when wet and the sides of each of the ponds had a gradient of 1 in 2.

Water could not be gravity fed from Pond 4 to Pond 5 and return. Accordingly, prior to the material date, on advice from the projects company, the Accused provided a small, portable manually operated petrol powered pump (pump) to perform this function.  The pump was set up near Pond 4.  To turn the pump on and off, it was necessary for a person to enter the compound. Prior to the material date, the contractor as part of his contractual duties had entered the compound on many occasions to operate the pump. The uncle would also enter the compound on occasion to perform the same task.

On occasion, the Accused's employees would enter the compound to spray weeds around the ponds.

The incident

On the material date, a Friday, at approximately 10:00am, the contractor arrived at the refuse site.

On arrival at the refuse site, the contractor unlocked and opened the northern gate to the compound and turned on the pump, to transfer water between Pond 4 and Pond 5.

At approximately 10:30am, in an area of the refuse site to the west of the compound, the contractor began operating a front end loader (loader) to push and level a pile of scrap metal. After a short time, and while he was still operating the loader, the contractor saw the uncle walk away in a westerly direction. The contractor did not see where he went, and did not see him alive again.

Later, and while he was still operating the loader, the contractor saw the uncle’s dog wandering near the loader, appearing agitated and smelling of septic waste. The contractor went to look for the uncle in the compound, and discovered that the pump was still on.  The contractor had trained the uncle in the task, and expected the pump to be turned off as the water in Pond 4 was getting low. The contractor continued to search in all other parts of the refuse site, but was unable to locate him.

The contractor then called the police. The police attended the refuse site and conducted further searches for the uncle during the afternoon of the material date, but failed to locate him. The police then asked the Accused to have the ponds pumped out.

The Accused engaged a contractor, who pumped out the ponds, and on Sunday 18 August 2013, the uncle’s body was found at the bottom of Pond 1. It is not known precisely how the uncle came to enter Pond 1.

Subsequently, the post-mortem report produced in relation to   the uncle’s death found that the cause of his death was consistent with immersion.

Post incident

On 22 August 2013, pursuant to section 48 of the Occupational Safety and Health Act 1984 (WA), WorkSafe WA served the Accused with five improvement notices, one of which,  required the Accused to install a fence around each of the ponds within 24 hours (notice).

In response to the notice, and within eight days of being served with the notice, the Accused installed a fence around each of Ponds 1, 2, 3 and 5, at a cost of $13,609.00.

In addition, the Accused also arranged for an automated pump system to be installed, which could be operated from the outside of the compound. This significantly reduced the number of times a person was required to enter the compound. The total cost of this work was approximately $5000.00.

It would have been practicable for the Accused to ensure that individual fencing around Ponds 1, 2, 3 and 5 and an automated pump were installed and in place prior to 16 August 2013.

The Accused plead guilty and was convicted on 8 July 2016.  On the 27 July 2016 the Accused was sentenced and the Magistrate fined the Accused $110,000 and ordered costs of $8336.30.