Prosecution Details

By virtue of section 23D being a principal who in the course of trade or business engaged a contractor to carry out work for the principal in relation to matters which the principal had the capacity to exercise control, did not as far as is practicable provide and maintain a working environment in which any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned were not exposed to hazards

This charge arises from an incident where a 100mm water main burst and a plumber working in an excavated trench adjacent to this was engulfed by water/sand and died.

Workplace and Employment

Ryan and Melissa Pty Ltd (ACN: 152 339 529) trading as Vivian Plumbing and Civil (Vivian Plumbing), is an Australian Company which specialised in plumbing works.

Vivian Plumbing were engaged by Badge Constructions (WA) Pty Ltd (Badge). Badge are a tier two construction company with Australian Company number 099 721 089.

Badge had a contract for construction and refurbishment works of the Mosman Park Shopping Centre situated at 50 Harvey Street, Mosman Park (the Workplace). Badge commenced at the site in late 2017.  Badge had engaged Vivian Plumbing to perform various plumbing works including works to install and connect a new 225mm sewer pipe line to the Minister's Sewer.

Relevant Legislation, Internal Policies and Procedures

The Occupational Safety and Health Regulations (OSH Regs) define high-risk construction work as including construction work involving excavation to a depth of more than 1.5 metres;  The Code of Practice for Excavation in 2005 provides practical guidance to prevent injuries in workplaces where excavations and associated earthworks are performed.  Badge had various policies and procedures for the Workplace, including a project specific Badge Safety Manual, but not all of these were followed.

Safe Work Method Statements (SWMS) & rescue plans

Badge identified in its Safety Manual that excavations deeper than 1.5m were high risk work and required all subcontractors who were going to perform this work to submit the following:

(a)                 Site specific SWMS covering the high risk work to be submitted for approval prior to commencing the work;

(b)                 Site specific rescue plans must be included in all SWMS;

(c)                 Excavation permit forms to be completed at site prior to commencing excavation works to be approved by a Badge site manager or safety officer prior to commencing excavation works.

Vivian Plumbing submitted an initial SWMS for excavations greater than 1.5m to Badge for review in late 2017.  Despite several reviews of Vivian Plumbing’s SWMS, the SWMS dated 2 July 2018 for excavations greater than 1.5m did not contain a rescue plan, as required by Badge's Safety Manual.

Asbestos Cement Pipe adjacent to sewer works area

Adjacent to where the 225mm sewer pipe was to be dug was a 100mm asbestos cement (AC) water main. This water main was a live ring main which meant that water was fed in from both ends of the pipe. As this was a Water Corporation asset it could only be worked on by Water Corporation approved plumbing contractors.

The presence and location of the 100mm AC water main was known by senior management at both Badge and Vivian Plumbing. It was located on a Dial before you Dig plan and was appropriately identified.  Once the plan for the location of the 225mm sewer pipe line was conveyed to the Water Corporation for them to conduct a risk assessment the Water Corporation strongly suggested that the 100mm AC water main needed to be cut and capped to eliminate a risk of failure and a risk to the crew. This was because works too close to the 100mm AC pipe could damage the asset.

After discussions between Badge and Vivian Plumbing, the plumbing supervisor sent an email to the Water Corporation on 11 September 2018 proposing that the proposed 225mm sewer pipe line be moved to be installed an additional 300 - 400mm away from the 100mm AC water main. He also raised needing to have a 50mm copper pipe line moved to accommodate a trench box.

On 17 September 2018 the Water Corporation sent back a revised Asset Protection Risk Assessment. The key asset for protection was the 100mm AC water main. This Risk Assessment detailed the alignment the sewer was to be installed on and included that extreme caution is needed as AC mains are fragile. It also detailed other procedures to be followed, but this did not include that the 100mm AC water main was to be cut and capped.

Incident at the Workplace on 17 October 2018

A trench box was required for the proposed excavation to occur on 17 October 2018 in order to continue with the 225mm sewer pipe line. 

Four Vivian Plumbing workers were at the Workplace on 17 October 2018. These workers were the Plumbing Supervisor, Excavator Operator, Plumber- the Victim and an apprentice.  When the Vivian Plumbing workers arrived on site an excavator had already been delivered in order for the loader operator to dig a trench for the ordered trench boxes. The loader operator completed the Badge Excavation Permit as was required. This excavation permit was signed by the loader operator and the victim and dated 17 October 2018 and taken to the Badge site office. The Badge Site Manager was not at work yet and the Safety Officer was not on site.

The loader operator left the Badge Excavation Permit on the Site Manager’s desk. The Site Manager arrived shortly after that but did not see and therefore did not check or sign off on the Excavation Permit.  Badge’s written internal procedure for Work Permits states that “work will not be allowed to proceed without the permits being completed and signed off by the workers and a member of the Badge project team”.

The Badge Site Manager was aware that the Vivian Plumbing workers were conducting excavation works.  Vivian did not have a rescue plan in place for the excavation despite the depth of the excavation being greater than 1.5 metres.

The victim was inside the trench box trying to locate the end of the 225mm sewer pipe. This pipe was approximately 3 metres deep.  Whilst the victim was inside the trench box the 100mm AC water main burst and water and sand engulfed the excavation.  Other workers had come to assist to try and save the victim, they were unable to do so and his head was submerged under the water and sand where he died.

Death

The cause of death was immersion. The victim had widespread aspiration of thick sandy water with heavy congested lungs.  He had to be removed from the trench later that evening by emergency service personnel.

It is not alleged that Badge caused the victim’s death but it is evidence of the potential seriousness of the hazard.

Subsequent to the Incident

The Water Corporation attended the site in order to cut water supplies to the area to make it safe.  Later the Water Corporation diverted the water main away from the area of the excavated trench.  Badge engaged a civil construction company to complete the 225mm sewer connection works.

On 5 December 2018 the civil construction company completed an Excavation Permit. The permit included Emergency Response arrangements such as a ladder, and spotter to be used at all times, and monitoring of the trench by a competent person on a daily basis. The permit was signed off by the Badge Safety officer before any work commenced.

On 18 October 2022 Badge Constructions (WA) Pty Ltd (ACN: 099 721 089) entered a guilty plea and was convicted.  Sentencing was heard on 15 November 2022 with decision on sentencing handed down on 9 December 2022.  Magistrate issued a fine of $120,000 and ordered costs as agreed of $15,000.