On 22 October 2024, a concrete pumping company was sentenced in the Caloundra Magistrates Court for breaching section 19 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with its primary health and safety duty.

On 1 June 2022 an incident occurred at a construction site in Caloundra. The defendant’s workers had completed a concrete pour at the site and started commencing the cleanout of the delivery line of the pump. At the time there were members of the public in the vicinity, who were positioned behind a wire fence. A worker asked them to move away, before proceeding with the cleaning task.

Whilst the workers were cleaning out the line, a member of the public moved closer to the fence, which startled the worker holding the hose. The worker turned the hose around, causing it to kink, which caused the hose to whip back around. The bystander was doused in concrete, which went into his body, eyes, face and mouth.

The defendant’s failures can be identified in three parts:

1. The defendant ought to have ensured that a solid isolation barrier was used as the exclusion zone fencing in circumstances where the delivery line cleaning task was carried out in close proximity to a footpath used by members of the public.
2. The defendant ought to have implemented traffic management along the pathway adjacent to the work area, namely by diverting other persons away from the pathway adjacent to the work area, during the delivery line cleaning task.
3. The defendant should have ensured that it did not carry out the delivery line cleaning task while other persons were positioned on the pathway adjacent to the work area.

In sentencing the defendant, Magistrate Benson took into account the defendant’s plea of guilty. Her Honour noted that thankfully the injuries to the bystander were not serious, however the risk that presented itself was significant.

The defendant, in their submissions, apportioned blame to the principal contractor for not providing a suitable site for the work to be conducted. Her Honour indicated that they should have been able to identify the risk, and had a conversation with the principal contractor about the adequacy of the fencing etc. The fact the bystanders were asked to move away by the defendant’s workers was a clear message that the controls were inadequate.

Her Honour noted that the issue of culpability was relevant given the actions of the principal contractor, however the risk was painfully obvious to the defendant, and its workers.

Her Honour noted that the defendant had an excellent safety record, had taken the incident extremely seriously, and had implemented far greater post-offence training/instruction then any of the other companies in the referred authorities. Her Honour noted that the defendant has created an industry standard document and associated training which has been implemented by the Concrete Pumping Association of Australia. Therefore, it is apparent that there are significant matters of mitigation present in this matter. Furthermore, the defendant company provided compensation and assistance to the injured person, which also shows relevant remorse.

Her Honour noted that specific deterrence was of limited relevance given the actions of the defendant post-incident, however noted the importance of general deterrence and providing a message to businesses in the industry.

Her Honour indicated that the range she had proposed for the offending was $45,000 - $50,000. However, given the factors in mitigation that fine would be at the bottom of that range.

Her Honour ordered that the defendant be fined $45,000 plus costs of $750 and $101.40 for filing. The fine was referred to SPER. No conviction was recorded.

OWHSP contact: enquiries@owhsp.qld.gov.au