Paul Simpson

Incident description:

On 27 August 2009 a five year old child sustained injuries when she fell into a partly constructed concrete swimming pool at the residential property where she lived.

The court found the defendant, Mr Paul Simpson, held obligations under s.28(1) of the Workplace Health and Safety Act 1995 to ensure people were not exposed to risks to their health and safety arising out of the conduct of his business or undertaking.

The investigation findings presented to the court revealed:

• the child was exposed to the risk of falling from height, as at no stage of the pool construction was there fencing, barricading or hoarding in place to prevent people from accessing the pool area
• the pool had been sprayed with concrete and was in an unfinished state
• the pool was approximately 2.2 metres at its deepest point
• the child was playing with her siblings near and around the pool when she fell
• the child injured her arm and sustained a head injury.

Court result:

The defendant pleaded guilty in the Gladstone Industrial Magistrates Court on 19 January 2011 to breaching s.24(1) of the Workplace Health and Safety Act 1995, having failed to meet its workplace health and safety obligations and was sentenced with no conviction recorded.

Industrial Magistrate Mr Mark Morrow ordered the defendant be placed under a two year good behaviour bond with a recognisance in the sum of $7500, as well as ordering investigation and court costs totalling $1065.40.

In reaching a decision the industrial magistrate acknowledged the defendant failed to ensure the area of the pool was properly secured to restrict access, in this case, by children.

In deciding the penalty imposed Industrial Magistrate Morrow took into account the defendant had not been prosecuted previously for any workplace health and safety breach, cooperated with the investigation and entered an early plea of guilty.

Considerations for prevention:

(Commentary under this heading is not part of the Court's decision.)

When working in the construction industry where there is exposure to risks of falling into an excavation, obligation holders should apply a risk management approach to ensure the selection of suitable control measures.

Consideration should always be taken for people who are not workers but may be in the vicinity of excavations, even when a worksite might be idle.

Risk management involves:

• identifying the hazards
• evaluating the consequences and likelihood of harm that may result from the hazard
• deciding on and implementing control measures to prevent or minimise the level of the risk from the hazard
• monitoring the effectiveness of the control measures to ensure they remain working correctly.

When deciding on and implementing control measures associated with the risk of falling into an excavation, obligation holders should consider erecting barricading or hoarding at least 900mm high, to prevent or restrict access by people to the excavation.

Visit the Workplace Health and Safety Queensland website for more information on:

• Building and construction
• Excavations and trenches
• What law applies?
• Managing risk
• Employer training options
• Training staff
• Risk Management Code of Practice 2007
• Workplace Health and Safety Act 1995.