93 – Company Director Given Home Detention after Worker killed in Trench Collapse

Director of Waikato Company Steelcon Construction Limited (Steelcon), Rodney Bishop, has been sentenced to four months home detention over the death of a worker Michael Haines who died after being buried when a trench he was working in collapsed. Steelcon was also fined $56,000.00 and ordered to pay reparation of $121,230.

The Facts
Steelcon is a company that formerly operated in the agricultural sector installing effluent management systems and tanks, farm underpasses, bridges, feed bunkers and pads. Mr Bishop was Managing Director and was responsible for all on-site activities undertaken by the company and its employees.
Mr Haines was a 34 year old construction labourer employed by Steelcon. At the time of the accident on 27 May 2014, Mr Bishop and Mr Haines were working on a farm near Matamata installing an effluent tank. Mr Haines was clearing dirt in the area where the tank pit joined a four metre deep pipe trench. The face of the trench collapsed and approximately five cubic metres of soil, with an estimated weight of eight tonnes fell and buried him. Despite rescue attempts, Mr Haines could not be saved.

All Practicable Steps
Subsequent investigation by a geotechnical engineer revealed the excavation was of mostly silty fill which had been placed in layers, but not in an engineered manner. Such layers are susceptible to collapse with little or no warning, particularly if moist, which was the case on the day of the accident. Mr Bishop, in taking all practicable steps, should have ensured a geotechnical inspection of the site was obtained to ascertain the soil stability and taken all adequate precautions against trench face collapse (such as shoring).
The Judge expressed that it is well known in the industry that a vertical unsupported excavation to a depth of four metres through wet silty fill carried a high risk of collapse. The effective means of avoiding or mitigating this risk were also well known.

Outcome
Reparation for the victims of Mr Haines’ family (who left five dependent children and a wife) was set at $90,000.00 in recognition of emotional and financial harm. This was covered by the insurance company.
Steelcon was ordered to pay a fine of $56,000.00. The Court took into account that the company had been responsible in organising insurance, its previous good track record for health and safety and that it was no longer trading, so was unlikely to reoffend.
When considering Mr Bishop’s culpability, the Court looked at various penalties to be imposed. While imprisonment was considered, the Court sentenced him to four months’ home detention. His early guilty plea and remorse were taken into account in this decision.

Conclusion
While this case went to Court under the old Health and Safety in Employment Act 1992, the principles would still apply under the new Health and Safety at Work Act 2015 (Act).
Had this occurred under the new Act, Steelcon would have been a “PCBU” (Person Conducting or Undertaking Business) and Mr Bishop, as director, would have been an “Officer”. An officer under the Act has a personal obligation to take positive steps to ensure compliance by the PCBU with its health and safety obligations. All reasonably practicable steps must be taken, which include processes to eliminate or minimise risks to health and safety. The consequences of breach are much higher with the new Act however, in that an officer under the Act can be ordered to pay:
– A fine of up to $100,000.00
– A fine of up to $300,000.00 if the failure has exposed any individual to a risk of death or serious injury or illness
– A fine of up $600,000.00 and up to five years’ imprisonment, or both, if the officer has engaged in conduct that has exposed any individual to a risk of death, serious injury or illness, and was reckless as to whether one of those risks eventuate.
It is safe to say, had Mr Bishop been sentenced under the new Act, he would not have got off quite so lightly.

Disclaimer: Our aim is to assist our clients to be proactive in ensuring statutory compliance and best risk management in the area of employment law. This publication is, however, necessarily brief and general in nature. You should therefore seek professional advice before taking any action in relation to the matters dealt with in this publication.