Take responsibility for your ground work

By Michael Selinger on April 13th, 2018
  1. Risk Management
  2. Risk Assessment


Following a collapse of an excavation that put lives of nearby residents at risk, the Melbourne County Court imposed a fine of $380,000 on a structural engineering firm and a fine of $100,000 on its sole director. The decision confirmed that where a designer has two options, one of which is cheaper, that option should not be adopted if it poses a greater risk to health and safety.

Structural engineering firm, AM Design & Construction Pty Ltd (the Company) completed structural drawings for the basement excavation works for a mixed commercial and residential development to be constructed at Mount Waverley (the workplace) in Melbourne’s south east. Aldo Di Tonto was the structural engineer for the development and was the secretary, sole director and sole owner of the Company.

The structural drawings for the workplace provided a cheap option for site retention that only required battering the sides of the excavation at certain angles, which were, in fact, not implemented by the builder in any event.

The most appropriate form of site retention would have been the use of bored piers, ground anchors and sprayed infill concrete panels constructed on a progressive basis to match the progressive excavation of the site piers and rock anchor system.

This system, which was more expensive, was not proposed by the Company. Sometime during the night of 13-14 July 2015, part of the excavation collapsed in the south-east corner of the workplace and on the night of 15 July 2015 a further, and much larger, collapse occurred.

The police advised the residents of the adjacent front townhouse to immediately evacuate. No one was injured.

The judgment

The Company and the director pleaded guilty to breaches of the Victorian Occupational Health and Safety Act. The prosecutor led expert evidence to demonstrate that the more expensive site retention option was a reasonably practicable option to reduce the risk of collapse and the Company should have prepared the appropriate structural drawings.

The Company and director accepted that this was an option but submitted that the cheaper option, if it had been followed, would have been effective. The Court considered this to be false logic and the conduct of the Company and the director was viewed as a substantial breach of the OHS Act.

The Court noted that there were mitigating factors in sentencing and reduced an initial penalty of $700,000 against the Company to $380,000. The penalty against the director was reduced from $180,000 to $100,000. The prosecution against the builder and its director is still continuing, with the builder intending to defend the matter.

Lessons for you

The substantial penalty imposed by the Court in this case on both the Company and the individual personally demonstrates the importance of safe design. The case also highlights the caution that a designer must exercise when recommending a design system to be implemented, particularly if there is a risk of serious injury or death if that design were to fail.

The decision also shows that the Courts will not countenance the adoption of cheaper design systems, even if the designer genuinely considered it was a reasonable way to control the risk. A designer should ensure that there is compelling evidence that the cheaper option would provide the highest level of protection from the risks, otherwise a further and potentially more expensive option should be adopted.

What else you can learn …

Having your own copy of the Health & Safety Handbook provides you with the necessary information to deal with most situations as they arise at your workplace.

When the information is at your fingertips, you don’t have to memorise it, just locate the topic you want – there are more than 70 in the Handbook – and find the answers you need. All content is written in plain English by the health and safety law experts at Holding Redlich.

Order you copy today and see how the Health & Safety Handbook can help simplify your business, even if you’re not digging holes!


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