Prosecution Details

Charge 1 - Being an employer did not as far as is practicable provide and maintain a working environment in which the employees of the employer are not exposed to hazards and by that contravention caused the serious harm to an employee. Sections 19(1) & 19A(2) Occupational Safety and Health Act 1984.

Charge 2 - Employer permitting employee to do construction work at the Workplace whilst that employee was not the holder of Construction Induction Training Certificate. Regulation 3.136(2) Occupational Safety and Health Regulations

Workplace and Employment 

The Accused, Sunchaser Enterprises Pty Ltd (Sunchaser), is an Australian Company with company registration number 059 984 851. Sunchaser trades under the name of Complete Underground Power Installations (CUPI) and were in the business of supplying and installing underground services.  Andrew Gorringe is a working Director of Sunchaser.

Another earth works company were the main contractor for the civil works at Mauravillo Estate located at Lots 2 and 3 Golf Links Road, Wundowie. The area where the offences occurred was commonly known as Golf Links Stage 2 (“the Workplace”).  Sunchaser was engaged by the earth works company to do trenching works and to install and supply services including installing conduits and pits, laying of power cables, communication cables, water reticulation and associated works.

In order to install the services, a trench is excavated in the services alignment. Cracker dust (blue metal dust) and then clean sand is laid in the bottom of the trench and then a cable drum is picked up by an excavator and brought to the side of the trench in order for cable to be laid from it.

When the cable drum is bought to the trench it has a rope tied to the end of the cable which is wrapped around the full circumference of the drum and tied off, to prevent it from unwinding during transport. This needs to be cut before the cable is able to be laid in the trench.

On 11 February 2016 a worker (“the Victim”) was employed by Sunchaser as a labourer. He had only recently commenced employment with the Accused.

Sunchaser had a number of other employees working on the Mauravillo Estate project along with the Victim including  Andrew Joseph Gorringe (Gorringe) – Director of Sunchaser and machine operator/supervisor on site, a Labourer/machine operator, and two other labourers (Labourer 2 and 3).

On 11 February 2016 the above employees travelled to Mauravillo Estate and were continuing work on Stage 2 of the Estate to install services. On this particular day they were working adjacent to lots 59 and 60 of Shearing Rise at the Workplace.

Offence 1

Incident

At about 7am on 11 February 2016 the Victim and the 3 other labourer employees met on site at the Workplace at Mauravillo Estate, Wundowie.  At approximately 7.30am the Director, Gorringe, also arrived on site at the Workplace.

The employees were preparing to lay cable into a services trench that had already been dug and prepared for cable laying. The trench was approximately 1100mm deep.   A full cable drum weighing approximately 1118kg was collected from the laydown area and brought back near to the location where the cable was to commence being laid.  This cable drum was hooked up to a 20 tonne excavator and positioned adjacent to the services trench.

At approximately 9.30am an employee labourer/machine operator left the Workplace as he was feeling unwell.

The Director, Gorringe, was operating the 20 tonne excavator. The cable drum was suspended from the lifting point of the excavator using a system of chains, shackles, a swivel and spreader bar, connected to a steel axle that was inserted through the centre of the cable drum.

The swivel used in the lifting system was not rated for lifting loads and should not have been used in a lift.

Gorringe lifted the cable drum and swung it over the services trench in order to commence laying the cable into the trench.

The Victim and Labourer 2 were in the services trench and Labourer 3 was outside the trench.

The Victim and Labourer 2’s role was to ensure that as the cable came off the drum into the services trench it remained within the Western Power alignment. They were to stand approximately 2.5-3m back from the cable drum in order to do this.

Labourer 3’s role outside of the trench was to keep the drum aligned with the trench by use of a metal bar.   No one is required to be under or immediately adjacent to the cable drum.  Gorringe’s role was to operate the excavator to move the drum down the services trench.

Once the cable drum had been positioned in the trench but still suspended off the ground it was observed that the rope that secures the cable to the drum to stop it unwinding had not been cut.

Gorringe became aware that the rope had not been cut and that the Victim was intending to cut the rope.  He said to the Victim either “why hasn’t the rope been cut, cut the rope” or “get in there quick and out” whilst the drum was still suspended in the air over the trench.

The Victim went to lean under the cable drum to cut the rope when the swivel failed and the cable drum fell onto the Victim pinning him to the ground.

Labourer 2 screamed out as they realised the Victim had been trapped and Labourer 3 then connected the rigging straight to the ‘D’ Shackle so Gorringe could lift the cable drum off the Victim and out of the services trench.

An ambulance was called and the Victim was taken to Royal Perth Hospital.

Serious Harm

The Victim received multiple serious injuries which include:

1. Left pneumothorax (collapsed lung) due to acute fractures of the third and fourth posterior ribs (necessitated an intercostal drain) and additional multiple rib fractures on the left side involving third, fourth, fifth, sixth and seventh ribs and eleventh and twelfth ribs;
2. Grade III/IV splenic laceration (ruptured spleen)
3. Burst fracture of the L3 vertebrae with a retropulsed fragment into the spinal canal causing mild narrowing of the spinal canal. Internally fixed during operation on 13 February 2016. In addition fractures in the left transverse process of T11 , T12 (thoracic spine), L1, L2, and L3 (lumbar spine);
4. Acute traverse fracture of the medial malleolus of the distal tibia (left ankle). This was operated on and internally fixed with two screws on 13 February 2016;
5. Acute spiral fracture through the distal left femur (left thigh) which was stabilized with a lateral plate and screws;
6. Fractured tibial plateau of the right knee. This was openly reduced and internally fixed with lateral plate and screw on 15 February 2016;

The Victim was an inpatient at Royal Perth Hospital from 11 February 2018 until 4 March 2016 (23 days) and then transferred to St John of God Mount Lawley until 16 April 2016.  He required ongoing physiotherapy, hydrotherapy and crutches to walk on release from hospital with follow up orthopaedic specialist appointments.  The severity of his fractures means he will not fully recover and now has permanent injuries.  He has been unable to return to manual labour type work due to limitations resulting from his injuries.

The Hazard

The Accused did not as far as is practicable provide and maintain a working environment in which its employees are not exposed to hazards.

The hazard (“hazard”) in the working environment was a cable drum being suspended in close proximity to a person. In addition the equipment used in the suspension was not suitable for lifting. This may result in serious injury or death if the cable drum drops.

The Accused’s failure to provide and maintain a safe working environment caused serious harm to the Victim.

Foreseeability

A reasonable person in the position of the Accused should have foreseen the Hazard.

Previous incident in 1998

The Director, Gorringe, suffered serious injuries as a result of a similar incident in 1998 when a cable drum fell on him whilst working for the Sunchaser. The accused knows the hazards of cable drums being suspended in proximity to a person.

Gorringe still walks with a limp due to the nerve damage sustained in the 1998 incident.

In addition a WorkSafe Improvement Notice number 101419 was issued to Sunchaser after the 1998 incident to develop, document and implement a procedure for a safe system of supporting the cable drum when laying underground cables so that persons are not exposed to the risk of injury.

Training requirements

The Accused allowed a number of its employees to perform High Risk Work (dogging work) at the Workplace without a High Risk Work Licence (HRWL) endorsed for Dogging class (DG).

Dogging work is defined as applying slinging techniques for the purposes of lifting a load and inspecting lifting gear.

The Accused allowed its employees to do such work at the Workplace without signing on to any Safe Work Method Statement (SWMS), that identified the risks of persons without a HRWL endorsed for Dogging (DG), doing dogging work, and how to reduce this risk.

High risk construction work includes work on a construction site where there is movement of powered plant.

The Accused allowed a number of its employees to perform high risk construction work at the Workplace without signing on to any SWMS, that identified the risks of movement of powered plant and suspended loads near people and how to reduce this risk.

Lifting equipment

The swivel being used in the lifting system attached to the excavator was not rated for lifting. It did not have any working load limit stamp on it and it should not have been used for lifting.  The type of swivel used on the day does not have a bearing and will not swivel easily under a load. Swivels of this type are also not designed for side loading, as this will create friction on the pin (nut and bolt) and will not allow any swivelling to happen, which would cause a stress point on the back end of the pin (nut and bolt).

It is reasonably foreseeable that suspending a heavy cable drum with a person nearby is hazardous and may result in serious injury or death to that person.  It is also reasonably foreseeable that if a lifting system contains components not suitable for lifting loads that these components may fail and result in the load being dropped which may result in serious injury or death to anyone nearby.

Requirements under the OSH Regulations and Australian Standards

The Occupational Safety and Health Regulations 1996 (the Regulations) require that all persons performing dogging duties are required to possess a High Risk Work Licence for dogging (class DG). This is a requirement of regulation 6.2 and dogman is defined in schedule 6.3 cl. 4.

In addition Australian Standards AS2550.1-2002 and the 2011 version requires that when duties of slinging and directing a load are performed the person performing this role should have the appropriate HRWL as per national standards.

The Accused should have had a qualified dogman performing the task of setting up and checking the rigging system and slinging the load.

Gorringe held a HRWL for Elevating Work Platforms with a boom length over 11 metres (WP class) but did not hold a DG class HRWL.

In addition regulation 4.53(1) OSH Regulation states “if there is at a workplace any plant that is designed to lift or lower … equipment or materials than a person who, at the workplace is an employer, … must ensure as far as practicable, that no loads are suspended over, or travel over a person.”

Regulation 4.53(6) also stipulates that plant other than a crane or hoist is not to be used at the workplace to suspend a load unless a number of conditions are met including: (e) persons and vehicles are prevented from entering any area in or adjacent to the workplace where there is a risk or injury or damage occurring as a result of the movement of the load … and (j) loads are only lifted using attachments that are suitable for the task being performed.”

Persons in the industry should be aware of exclusions zones and suspended loads as well as the regulations that apply to the types of work they are performing.

Although the Accused knew of the dangers of persons entering the area adjacent to a suspended load the Accused did not enforce its own procedures to ensure the safety of persons under its employment.

Subsequent to the incident

On 12 February 2016, after this incident, the swivel that failed was replaced by a rated lifting swivel with a safety chain attached in case of a failure. This cost $429.

The verbal procedure regarding the rope not being cut on the drum was changed so that the rope is either cut outside of the trench before the drum is lifted or if this is not picked up the drum is to be landed in the services trench before any person approaches the drum to cut the rope.

All staff were also required to attend a site induction with the main contractor, the earth works company and sign onto a Job Safety Analysis and Safe Work Procedure with the earth works company.

Gorringe also obtained a HRWL to enable him to perform dogging duties. These licences can be obtained for approximately $850.

Offence 2

On 11 February 2016 the Accused allowed one of his employees, to do construction work at the workplace whilst that employee was not the holder of Construction Induction Training Certificate (commonly called a white card).

This is a basic mandatory requirement for all persons doing construction work per regulation 3.136(2) Occupational Safety and Health Regulations.

Construction work is defined in regulation 1.3 as:

(d) “work in laying any pipe or work in lining pipe that is done or adjacent to the place where the pipe is laid or to be laid”; or

(f) “roadworks, earthworks or reclamation; or

(g) “work in laying an underground cable or work related to laying an underground cable that is done at or adjacent to the place where the cable is laid or to be laid”

The employee had been working for the Accused for approximately 5 weeks before this incident and had been performing construction work (as defined) during that time including on 11 February 2016.

This training certificate could have been obtained online at a cost of between $38.50 - $90.00.

Charge 1 - The Magistrate fined the Accused a starting point of $60,000 this was reduced for early plea with the resulting end fine of $45,000. 

Charge 2 - The Magistrate fined the Accused $2000 and ordered total costs of $2195.50.