Contractor Pre qualification /approval systems
Rob, I think this is the case you're thinking of. Here is our story from the Sept/Oct 2015 edition of Safeguard.
A civil contracting company has successfully defended a charge arising from a trench collapse after the court rejected the regulator’s arguments that its contractor pre-qualification process, and its JSA and other documentation, were inadequate.
Dempsey Wood Civil Ltd, the main contractor at a site being developed by Auckland International Airport Ltd, had been charged under s18(a) of the HSE Act after an employee of one of its subcontractors was injured in a trench collapse. The charge was dismissed (Papakura DC, 22 May 2015).
The July 2013 incident involved two employees of subcontractor company Draeinail Construction Ltd (which pleaded guilty to a separate charge). One of them was in the bottom of a trench ensuring a stormwater pipe was correctly aligned. The other operated an excavator positioned close to the edge of the trench, with its arm extended over the other man. Clay came loose from the front face of the trench, striking the man at the bottom and causing crush injuries to his pelvis.
The front face of the trench was benched with two steps cut to a vertical face of 1.8m each, and a 1.2m wide slot had been cut into the top edge to give the excavator driver better visibility. However the front face had not been battered to a safe slope.
In court, WorkSafe argued there were five practicable steps Dempsey’s could have taken to prevent the incident. They can be grouped into three alleged failings, the first of which was failure to effectively pre-qualify Draeinail to ensure it had a recorded OHS policy and a safe system of work, including method statements and hazard register/controls and a documented system for reviewing these. Assumptions based on previous experience with Draeinail would be insufficient, it was argued.
The Court rejected this argument, noting that Dempsey’s had worked with Draeinail since 2008, viewed the people involved as high quality, and had received positive feedback about the subcontractor from 20 project managers.
An expert witness for the defence said that documented systems could be helpful, but for a small “hands-on” contractor it is usually more valuable to know of their track record from direct experience than to rely purely on system documents.
The court found it was reasonable for Dempsey’s to rely on its prior knowledge of Draeinail’s health and safety practices.
The second group of alleged failings related to documentation: that Dempsey’s could have ensured a documented safe work method system for the trenching work was developed and communicated to contractors; and that an adequate JSA relating to the specific work had been developed and discussed daily with all workers.
While both parties agreed Dempsey’s project management plan was acceptable, WorkSafe noted that only one JSA had been completed, in April, three months after work had begun and three months before the incident; and that it had been prepared as a response to an incident in February when a Draeinail employee had been observed working outside the trench shield. WorkSafe said this should have alerted Dempsey’s to the need to monitor Draeinail more closely; nor was Draeinail required to attend daily pre-start meetings.
WorkSafe argued a JSA should be reviewed daily before work starts. The expert witness took the view that the prepared JSA was a comprehensive and generic document for all excavations deeper than 1.5m, and that it was unnecessary for each excavation to have its own JSA. He said documented systems of work are important at project level and provide a standard against which to audit, but the work on the ground was carried out by experienced people who communicated verbally.
The court also noted that the excavator driver had started on site only two days earlier and had not yet taken part in the weekly site induction for new workers.
The third step allegedly not taken was to monitor Draenail’s performance against Dempsey’s overall project management plan, especially after the February incident. Evidence was given that Dempsey’s conducted monthly audits and daily site inspections, and had visited the site twice already on the day in question. The court accepted this monitoring as adequate.
The Court accepted the JSA could have been more specific and the tailgate meetings better documented, but noted there was an agreed approach regarding dealing safely with the front face of a trench, and that Draeinail were the drainlaying experts.
The Court found the cause of the accident was due to decisions made by various Draeinail staff over a brief period of time, and that the decision by an experienced excavator driver to proceed very close to the face and then scoop out part of it, while a man was directly below, was difficult to comprehend and an “elementary error of judgement” which could not have been anticipated by Dempsey’s.