JS Armstrong Water Tanks Pty Ltd, a company involved in the construction and installation of concrete water tanks throughout Victoria, has been fined after an excavation incident that caused serious injuries.
In December 2023, a building permit was issued for the planned construction of a single-storey dwelling and garage at the workplace. The property owner instructed the builder that he wanted an 89,000-litre water tank installed at the workplace. Based on a recommendation, JS Armstrong was to perform this task. The required hole for the tank installation was excavated by another company.
In March 2024, the director of JS Armstrong brought a young engineering student with him to the workplace, where they were tasked with being a helping hand, including assisting with shovelling within the excavation. The excavation had no warning signs, fencing, battering or shoring. The workers also noted that the walls of the excavation were peeling away while they were inside.
Workers, including the student and the director, were inside the excavation. The student climbed the ladder to get a bottle of water then returned to the edge of the excavation and leant in to pass the bottle to the JS Armstrong director. At this point, the soil under their feet gave way and they fell into the hole, landing on top of a brick.
An ambulance was called. While this was happening, workers observed other parts of the excavation wall collapsing and decided to get out of the excavation, due to safety concerns.
According to the medical records, the engineering student suffered an L1 anterosuperior / superior endplate fracture (a fracture to the first lumbar vertebra, located just below her rib cage), C-spine tenderness, and whiplash.
JS Armstrong were fined $50,000 with conviction for breaching s.26 of the OHS Act. For this charge, the maximum penalty is approximately $1.7million, but the jurisdictional limit of the Magistrates’ Court is about $480,000.
The objective seriousness of JS Armstong’s offence is assessed not by looking at the outcome, objective seriousness is assessed by the level of the departure from the duty owed. In this case the departure from the duty owed was significant and clear.
The hazards of trenching and excavations is well known, and employers have free access to guidance on how to ensure the safety of workers in WorkSafe’s Compliance code: Excavation | WorkSafe Victoria.
In February 2025 the Sentencing Advisory Council released a report to the Victorian Government making 12 recommendations for reform regarding the sentencing of OHS offences in Victoria. This included significantly increasing maximum penalties for breaching OHS duties in line with community expectations. The Victorian Government is yet to provide a response to this report.
Read more: Prosecution Result Summaries and Enforceable Undertakings | WorkSafe Victoria