In November 2017, the Brisbane Magistrates Court imposed a fine of $8,000 on AW Geotechnical Pty Ltd, who pleaded guilty to failing in their duty to take reasonably practicable steps to consult with other duty holders, as required by section 46 of the Work Health and Safety Act 2011 (Qld) (WHS Act). The decision was the first time in Queensland (and second in Australia) that a company has been successfully prosecuted under the provision.
Facts
AW Geotechnical Pty Ltd was engaged to provide geotechnical advice on a Queensland construction site in a residential area. The company prepared a number of reports in relation to excavation work to be undertaken on the site during construction of residential dwellings. While preparing the reports, the company conducted a number of site visits and liaised with onsite management.
On 27 May 2015, a collapse of rock fabric occurred along the south wall of the construction site. Despite the collapse, the decision was made to continue works on the site.
On 31 May 2015, a second, more substantial collapse, occurred to the northern end of the site. The collapse included sections of blockwork and over 20 metres of boundary soil which included 2.5 metres of the land from the neighbouring property. No injuries resulted from either incident.
Expert evidence presented to the Magistrate pointed to a lack of engineered ground support, which resulted in the soil collapsing.
Charge
AW Geotechnical Pty Ltd pleaded guilty to one charge of breaching section 46 of the WHS Act. The applicable maximum penalty at the time of the contravention was $100,000.
Findings
While it was recognised that the company had consulted, cooperated and coordinated activities with the onsite management and builder, Magistrate Shearer found that the consultation was reactive, rather than proactive, which fell short of the standard of reasonableness required.
In reaching the decision, the court determined that the company failed to take reasonably practicable steps to prevent the collapse, particularly given there was an earlier collapse.
The court recognised the reasonable steps that the company could have taken, including:
- establishing an exclusion zone in the excavation site;
- issuing a cease work order; and
- referring the issue to engineers for more extensive expert advice and recommendations.
The Magistrate also noted the vague contractual relationship between the company and other duty holders responsible for the project and that the company's role in coordinating activities was somewhat hampered by the actions of others, including the builder.
In considering the appropriate sentence, Magistrate Shearer had regard to the fact that the company had not been prosecuted previously for any work health and safety breach, had cooperated fully throughout the investigation and entered an early guilty plea.
The company was fined $8,000 and no conviction was recorded.
Take home points
The case suggests that a proactive approach (rather than reactive) is required to discharge the consultation obligations under section 46 of the WHS Act.
This involves adopting a risk management approach to ensure the suitable selection of control measures by:
- identifying potential hazards and risks;
- evaluating the likelihood of harm resulting from the potential hazards or risks; and
- deciding and implementing control measures to minimise the hazards or risks.
The case also serves as a reminder to clearly set out any consultation obligations of duty holders in contractual documentation.