Lessons From
History
Summary of
interesting cases
Responsibility of Self Employed
Self employed trench digger has responsibility to the
disobedient
NSW OHS Act
2000 - s9
In the matter of Inspector Barry Childs V Barry John Stimson (Matter No IRC 6270 of 2003) we read of a Prosecution
under s9 of the Occupational Health and Safety Act 2000
Barry John Stimson ("the defendant") was self employed and was retained by Mr. RLC to dig a trench along the side
of a dam on Mr. RLC's property in order to establish the source of a possible leak in the dam. Mr. RLC was was
fatally injured when the trench collapsed and he was buried.
The defendant pleaded not guilty to the charge based on s28 of the OHS Act 2000 in that it was beyond his power to
control the movements of the deceased. "if I had put an electric fence around the place he still would have got in
if he had wanted to."
The charge was that the defendant failed to ensure that people, other than the employees of the Defendant were not
exposed to risks to their health and safety arising from the conduct of the Defendant's undertaking while they were
at the Defendant's place of work, contrary to section 9 of the Occupational Health and Safety Act 2000. He:- i)
failed toto ensure that people, in particular Mr. RLC, did not enter the trench during the excavation work; ii)
failed to ensure that, in relation to the excavation work, an adequate
system of safety, involving shoring, earth retention equipment, appropriate placement of excavated material or
other appropriate measures, was in place; iii) failed to undertake any or any adequate risk assessment in relation
to the fall or dislodgement of a section of wall of the trench; iv) failed to ensure that the excavation work was
carried out by or under the supervision of a competent person, being a person who has acquired through training,
qualification or experience, or a combination of them, the knowledge and skills to carry out the excavation work
with the excavator; and v) failed to ensure that the Defendant held a certificate of competency in the use of the
excavator.
In cross examination, the defendant told about telling Mr. RLC, on three occasions, to get out of the trench that
was being dug. On one occasion he even lifted him out of the trench with the bucket of the loader. He also admitted
to having no knowledge about the code of practice for excavation work published by WorkCover Authority from 31
March 2000.
The magistrate said that… "In my view, there was a clear risk from the failure to comply with cl 240 of the
Occupational Health and Safety Regulation 2001 and to adhere to the code of practice which provided that any trench
deeper than 1.5 metres must be shored, battered or benched. Any trench likely to be unsafe, even if it is less than
1.5 metres deep, must be shored, battered or benched. The code also provides that advice from a qualified engineer
experienced in soil mechanics should be obtained if a bank could be unstable, especially in clay soils." Also that
…."Although Mr. RLC was the owner of the property who, at the age of 64, acted as an independent person ignoring
the defendant's direction not to enter the trench, the duty is to provide a risk free environment to all persons
including the disobedient."
The Court found that the offence was proven and a verdict of guilty was entered in this matter. The defendant was
convicted of the offence, as charged and was fined the sum of $5,000
[2005] NSWIRComm 336
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