National Infrastructure Solutions Pty Ltd (NIS) has been fined $500,000 for repeatedly recklessly endangering an employee by sending him into an excavation to repair a gas leak in an attempt to avoid notifying the gas asset owner and lodging an incident report. The company’s actions exposed the employee to the risk of serious injury or death by asphyxiation.
NIS is a telecommunications infrastructure specialist company who perform pit and pipe installations. The company had been engaged to install conduit for internet cables during the construction of two townhouses in Bentleigh East, involving excavation work on the nature strip and underneath the concrete driveway. NIS contacted Dial Before You Dig (DBYD) to identify any pipe or cable work (assets) in the nature strip and were issues a DBYD report. Amongst other information in the DBYD report was an instruction – “if you damage an underground asset, you MUST advise the asset owner immediately”.
In January 2023 two NIS employees were assigned to carry out the work – before commencing the task the employees completed all required safety documentation and were aware of the process should an underground asset be damaged. Efforts to locate the gas asset electronically and manually were unsuccessful and it was assumed that the assets were located below a depth of 700mm.
Whilst boring a pathway for the internet conduit under the driveway the employees heard a hissing noise – they had struck a gas pipe resulting in the uncontrolled release of gas, exposing them to a risk of injury or death due to asphyxiation.
The NIS manager instructed workers to dig under the driveway, assess the damage and perform a repair. The employees could smell and hear the gas and advised the manager to call the gas company, to which the manager responded that they should fix the pipe themselves to avoid an incident report.
One of the employees made multiple attempts to enter the excavation and repair the pipe, each time exiting with shortness of breath. The manager insisted that they continue to attempt the repair. After further attempts, and feeling dazed and dizzy, the employee attempted a final entrance headfirst. He could not reach the gas pipe and attempted to retreat but lost consciousness. The other employee pulled him out by his legs before he was taken by ambulance to hospital suffering respiratory arrest secondary to gas inhalation.
As a result of the incident, the employee suffered right subconjunctival haemorrhage in his eye, right sided chest pain and aching secondary to resuscitation efforts post respiratory arrest. He was further diagnosed with acute stress disorder from the incident.
NIS and the manager did not attend court, and the company is now in liquidation. NIS was fined $250,000 and convicted for breaching s.32 of the OHS Act - reckless conduct endangering persons at a workplace – and a further $250,000 and convicted for a breach of s.21(1) and 21(2)(a) of the OHS Act – failure to maintain a safe system of work.
The Court noted that the offending was at a high level of seriousness, showing a high level of moral culpability. A young worker was exposed to a high risk of serious injury, aggravated by the repeated direction to go back down to be exposed to the risk again and again, ultimately ending up in hospital.
Read more: Prosecution Result Summaries and Enforceable Undertakings | WorkSafe Victoria
