|Offender||Glenn Edwin RUSH|
|Charge||Charge Number||Offence Date||Date Convicted||Regulation||Section||Penalty Provision||Penalty Imposed||Date Sentenced|
|1||RO4278/2021||8 August 2018||8th October 2021||20(1) 20A(2)||20A(2)(c)||$10,000.00||5th November 2021|
|Description of Breach(es)||
Being an employee failed to take reasonable care to avoid adversely affecting the safety or health of any other person through any act or omission at work and by that contravention caused serious harm to a worker.
These charges arise from an incident where a limestone retaining wall and a steel plate collapsed into an excavated trench that was more than 1.5m deep. An employee working in the trench at the time of the collapse was crushed and suffered serious injuries as a result.
Workplace and Employment
The offender was an employee of Wormall Civil Pty Ltd (“Wormall Civil”). Wormall Civil’s main function is to develop land into housing lots. It is a company based in Western Australia.
Wormall Civil was engaged to complete the early stage civil works for housing blocks in Baldivis (“the Paramount Site”). This required earthworks to be performed, to create roads and blocks of land that are suitable for houses to be built on. This included the installation of the regular services such as sewerage, power, and water, as well as installing limestone retaining walls to delineate each block of land.
Wormall Civil had direct employees working on site which included:
• The offender (Site Supervisor);
• Drainer/Utilities Layer;
• Excavator/Digger Driver;
• Plant Operator/Loader Driver;
• Quality Assessor/Site Clerk/Labourer; and
Wormall Civil also had sub-contractors on site at various times. This a limestone company whose job it was to install the limestone retaining walls.
During the initial stages of civil work, the regular services such as sewerage pipes are laid prior to any retaining walls being built. This involves excavation works being conducted in order for a drainer to enter the trench and install the sewer Inspection Shaft (“IS”) in accordance with Water Corporation requirements. The IS extends down about 2m in depth.
The Rectification Works
On 24 July 2018, during a site walk around of the Paramount Site, involving the Project Manager, Construction Advisor and the offender, it was identified that there was a problem with the IS’, as they had not been installed in full compliance with Water Corporation requirements. Specifically, it was determined that each affected IS had been laid too close (500mm) to the road boundary of each lot and further work would be required to enter the excavation and extend the IS so that they were 1500mm in from the road boundary and compliant (“the rectification works”). This needed to occur in six locations or “proposed lots” on the Paramount Site.
The difficulty with the rectification works was that the IS on several of the lots was now located in an open excavation/trench that sat next to adjacent limestone retaining walls which had been substantially constructed and were in the process of being completed.
The offender as Site Supervisor was responsible for ensuring the rectification works was completed.
Relevant Legislation and Code of Practice Relating to Excavation Work
Regulation 3.137 of the Occupational Safety and Health Regulations (OSH Regs) defines High-Risk Construction Work as including:
(g) Construction work involving excavation to a depth of more than 1.5metres;
(p) Work on a construction site where there is movement of powered plant.
Regulation 3.143 requires a Safe Work Method Statement (SWMS) to be completed for High-Risk Construction work.
Regulation 3.111 of the OSH Regs requires an employer to assess the risk and ensure that an area or opening is shored in a manner that will prevent it from collapsing or moving, where:
(a) any excavating work or earthwork is to be done and there is a risk that the matter forming, or adjacent to, the excavated area or the earthwork may fall or dislodge; or
(b) a person is required to work in an excavated area or other opening in the ground that is at least 1.5 metres deep.
The Commission for Occupational Safety and Health produced a Code of Practice for Excavation in 2005 (“the Code of Practice”) which was approved pursuant to s57 of the Occupational Safety and Health Act (“the OSH Act”). This Code of Practice provides practical guidance to prevent injuries in workplaces where excavations and associated earthworks are performed.
The Offender’s Knowledge of Safe Work Practices
On 31 March 2017, the offender completed a Certificate IV in Civil Construction Supervision. That course involved undertaking several units which covered, amongst other things: the importance of risk management, implementing and monitoring WHS policies and procedures to meet the legislative requirements, preparation of SWMS, completing daily pre-starts, and how to safely supervise excavation work by following the OSH Regulations and Code of Practice.
When the offender commenced employment with Wormall Civil, he completed the “Wormall Civil Online induction”. This included the following rules:
• Always have an authorised SWMS in place for the activity being undertaken. No High Risk Work is to be conducted without a SWMS in place in accordance with regulation 3.137 of the Code of the OSH Regulations (p.13);
• Pre-Start meetings are to be conducted daily. The purpose is to discuss any events from the previous day and to plan the current day’s work; and
• In relation to excavation work, a “permit to excavate” is required prior to undertaking any work, trenches are to be battered, benched or shored, and do not place items of plant or equipment near the trench where it can fall in or cause the sides of the excavation to collapse (p. 23).
Wormall Civil also had various internal policies and procedures relating to the hazards of working in excavations, which the offender was aware of prior to the incident.
The project drawing labelled “Earthworks, Retaining Walls, Standard Details”, dated 5 September 2017”, confirms that “no excavation work to be carried out in front of retaining walls without approval from a structural engineer”.
The “Project Health, Safety, Environmental and Quality Management Plan for Paramount Site – Stage 1 – Section 16.11 refers to “Excavations and Earthworks” and reads:
“A supervisor must ensure controls are implemented in relation to excavations and earthworks. The Western Australian Code of Practice will be used as the basis of issuing the Permit to Dig for Excavations, where excavations occur to protect personnel from harm from the potential hazards resulting from excavation in the workplace and associated earthworks are performed…All excavations that are >1.5 deep must be shored, battered, shielded or benched in a manner which will prevent it from collapse…”.
On 13 June 2018, as Site Supervisor the offender signed off on the “Project Risk Register” for the Paramount Site, it includes:
• In relation to the hazard of “collapsing walls in trenches or excavations” that the Site Supervisor is responsible for ensuring a SWMS is in place, and a permit to dig must be obtained before completing any excavation work;
• In relation to safely shoring excavations and the hazard of trench collapse, the document refers to the requirement that the Site Supervisor follow the OSH regulation and Code of Practice for Excavations, as well as specifying the control measure of ensuring no loads are placed near the excavation.
On 26 July 2018 the offender signed off on a “Safe Work Method Statement, Paramount Stage one, Sewer Installation”. That SWMS identifies the hazard of trench collapse as “proper trench construction, benching, battering and shoring boxes as directed” (p. 7).
Email to the Offender – 26 July 2018
On 26 July 2018, the Construction Advisor emailed meetings minutes for the internal site meeting at the Paramount Site. The minutes attached to that email included that “High Risk Work must be identified and a SWMS approved by the Supervisor prior to works commencing”. The email also states in relation to concerns about general safety issues around excavations:
“Glenn, just a general comment that you really need to police the boys/girls and make sure adequate flagging and signage is installed around excavations. As we discussed on site, there were a few that were a bit ordinary or lacking completely”.
Project Manager Email to Offender – 6 August 2018
On 6 August 2018, the offender and the Project Manager, had a telephone discussion in relation to the rectification works. After that discussion, the Project Manager sent the following email:
As discussed over the phone due to Dave’s instruction below we will have to extend the IS’s so that they are 1.5m inside the boundary. With the wrap around walls now constructed I cannot see any safe way for a drainer to extend the IS without removing the front boundary retaining wall. We can have a look at it at tomorrow’s meeting but I do not want to see a drainer extending the IS until the wall is removed first”.
Senior Management Site Discussion - 7 August 2018
On 7 August 2018, there was the usual fortnightly site meeting of Senior Managers at Wormall. This involved a walk-around of the Paramount Site. In attendance at this meeting was: the Owner and Director, the Construction Advisor, the Project Manager and the Offender.
During the discussion, the group stopped at the first excavated trench at which the rectification works would be taking place. The group discussed the hazards involved with excavating close to the adjacent retaining wall. The offender said he would be using a steel plate as ad-hoc shoring in an attempt to shore-up the retaining wall.
The use of a steel plate in this manner as “ad-hoc” shoring is not a recognised safe method of shoring in accordance with the Code of Practice.
These types of steel plates are usually used to go on the end of trench boxes, they are not supposed to be used on their own to shore the sides of an excavation close to a retaining wall.
At no point did the offender refer to the Code of Practice, or any of Wormall Civil’s internal procedures that needed to be followed, prior to the rectification work being commenced.
Incident on 8 August 2018
The next day, on Wednesday 8 August 2018, the usual pre-start meeting occurred at the Paramount Site at approximately 6:45am. The offender, as Site Supervisor, was in charge of leading the pre-start. In attendance at that meeting were: the Victim, the Plant Operator, the Drainer/Utilities Layer and the Excavator/Digger driver and another labourer. Although all of the day’s jobs, particularly High Risk Construction Work, are meant to be discussed at the pre-start meeting, and recorded on the pre-start sheet, there was no mention or record of the rectification works that needed to take place that day.
In the area where the excavation work was taking place there was an open trench, with a partially completed limestone wall adjacent to it. The depth from ground level to the bottom of the trench was approximately 1.8m, and the depth of the top of the limestone block wall down to the base of the IS junction that was to be dug out/exposed was approximately 3m.
Following the pre-start meeting, the offender told the Plant Operator to go to the Brightwood Site and get a large steel plate/sheet (4m x 3m) and take it over to the area of the Paramount Site where the rectification work would take place.
The Plant Operator had discussions with the offender in the days leading up to the incident and expressed his serious concern that in completing the rectification work in the manner proposed by the offender, the adjacent retaining wall may be undermined and that the wall was clearly a danger. The offender made it clear to the Plant Operator that he was pushing ahead with the work and using a steel plate as ad hoc shoring.
Prior to the work commencing no Safe Work Method Statement (SWMS) had been developed, the limestone retaining wall had not been removed, and the trench had not been appropriately benched, battered or shored in accordance with the Code of Practice. The offender was responsible for ensuring a SWMS had been completed prior to any work taking place and that there were adequate control measures in place prior to any worker entering the trench.
The offender directed the Excavator Driver to set the steel plate up against the side of the trench closest to the retaining wall using the excavator. The Excavator Driver asked whether they were digging a trench box, to which the offender replied words to the effect, “No, we don’t have a trench box, dig the fucking thing”. The offender did not give the Excavator Driver any further directions or explanation of the work to be completed, and the Excavator Driver did not know why he was resting the steel plate against the wall.
At approximately 11:20am the victim arrived at the trench where the rectification works were taking place and asked the offender if he needed any help.
The offender told the victim to go and get a shovel so he could help him dig. The victim returned with a shovel and was told by the offender to get in the trench and help him dig down to find the base of the IS, in order to expose the PVC pipes.
The Excavator Driver was working at the same time, excavating material from the trench using the 30-tonne excavator. Around 11:30am, the offender called the Drainer/Utilities Layer over the two-way radio to ask him to come to the trench so that he could start working on extending the PVC pipe.
The offender gave the Drainer/Utilities Layer a quick brief on what needed to be done to extend the PVC pipe. The Drainer/Utilities Layer then left the work area to get the correct fitting that would be needed to complete the work.
The Drainer/Utilities Layer returned around 15 mins later at which time the offender and the victim were in the trench shovelling dirt with the steel plate still positioned against the limestone block wall. Another labourer was also in the trench digging.
The offender then left the rectification works as he was called to another part of the Paramount Site to deal with an issue. The Drainer/Utilities Layer entered the trench and started digging with the victim and the other labourer. At that stage, there was no competent supervisor present. As the only competent person overseeing the works, the offender should not have left the works unsupervised at any time.
The Drainer/Utilities Layer then got out of the trench and left the area to go to the site office area to find a screwdriver. The other Labourer then exited the trench to talk to the excavator driver. This left the victim as the only person in the excavation.
Around 10 seconds after the Labourer exited the trench, sand, the steel plate and the limestone retaining wall blocks collapsed into the trench. The victim was pinned by the sand, steel plate and several limestone blocks which weighed approximately 250kg each. The other workers tried to pull the collapsed material off the victim, however it was too heavy. The Excavator/Digger Driver then used the excavator to remove the material from the victim. He was then lifted out of the trench by his colleagues. Approximately 30 mins later an ambulance arrived and took the victim to hospital.
Offender’s Actions Following the Incident
Shortly after the ambulance had taken the victim away, the offender told the Drainer/Utilities Layer to get into the collapsed trench and finish the job. He also told the Excavator/Digger driver to use the excavator to remove the limestone blocks and plate from the trench, and said to get everything tidied up because WorkSafe would be coming. This conduct interfered with the scene of the incident, as the trench had been filled in and the scene had been disturbed by the time WorkSafe attended.
Offender’s Failure to Take Reasonable Care
The rectification work was not mentioned in the daily pre-start meeting on 8 August 2018. As Site Supervisor, the offender was solely responsible for ensuring the rectification work was addressed in the pre-start meeting.
Despite the rectification work requiring employees working in an excavation to a depth of over 1.5m, with movement of powered plant nearby, there was no SWMS in place for this High Risk Construction Work prior to the work commencing. Again, this was the offender’s responsibility.
The steel plate should not be used in unsafe manner that it was. The offender should have ensured the excavation work was undertaken in accordance with the Code of Practice and OSH Regulations, prior to any worker entering the trench.
The offender had knowledge of the dangers involved in using the steel plate as ad hoc shoring close to a retaining wall, was also reminded of this in the days leading up to the incident, by several employees who expressed their concerns, and despite this he went ahead with the work in an unsafe manner which placed employees in imminent danger.
The retaining wall could have been removed at minimal cost. It would have taken approximately two hours to remove the section of the wall, and the same amount of time to reconstruct it after the work was finished. Removing the wall would have eliminated the hazard. The offender was aware of this prior to the work commencing. AJ limestone was also on site at the time, and could have undertaken this task if they were asked.
Trench boxes were available and could have been used to ensure workers working in the trench were protected from possible trench collapse, or cave-ins. Despite this, no trench box was ordered.
The offender left the works mid-way through to go and attend to another issue on site. At this time no competent person was left in charge of the rectification works, which left junior workers unsupervised while conducting the High Risk Work.
Due to being crushed by the retaining wall and a steel plate, the victim received serious crush injuries to his pelvis, including multiple fractures to his pelvis and pubic bones and ripped ligaments. He was admitted to the trauma unit on the day of the incident and required surgery two days later to stabilise his pelvis. This included steel plates and screws being inserted. The victim has been required to undergo physiotherapy, hydrotherapy, and receive support from a psychologist as a result of the incident and his injuries.
The Offender plead guilty and was convicted on 8 October 2021. On 5 November 2021 the Magistrate fined the Offender $10,000 and ordered costs of $1172.50.
|Court||Magistrates Court of Western Australia - Rockingham|
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