It is common knowledge within the construction industry that workers operating in trenches pose serious health and safety risks, with harm such as severe injuries and fatality contemplated as likely.

WorkSafe and various industry guidelines reinforce this and require companies to implement measures to eliminate the risks arising from having workers in trenches. Such measures include and are not limited to benching, battering, shoring, and preventing ongoing operations or heavy machinery use near the trench while workers are in it.

Two related civil engineering construction companies – Chimbusco International Limited (CIL) and its subsidiary Mr Civil Limited (MRCL) – which specialised in drainage, civil works and related residential development infrastructure, failed to implement the above health and safety measures in a 2.4m deep trench on a residential construction site.[1]

Construction was at the stage where wastewater drainage needed to be laid. A trench needed to be excavated to lay the drainage and connect the various lots to the public network.

Notably, WorkSafe was not notified of the excavation work prior to it commencing, as is legally required.

The job safety analysis document listed trench collapse as a high-risk rating hazard. It stated: “When the trench exceeds 1.5 metres or where work will be carried out in the trench where employee’s heads are below ground level, shoring or other collapse prevention to be installed.” This was signed by employees.

Despite this, no control measures were implemented on the day of the incident or days leading up to it. Nor was it discussed in the briefing meetings.

One end of the 16m long trench had benching (steps cut in to prevent collapse). However, the other end where the trench was 2.4m deep, where the victim was working at the time of collapse, did not. The trench collapsed on a worker, burying him up to his neck. The victim, believing he was going to die, told his colleagues his bank account details with instructions to transfer his money to his family.  No severe injuries resulted directly from the collapse, but the victim did sustain a leg injury during the rescue operation and suffered psychological harm, including ongoing nightmares.

While the resulting injuries from the trench collapse were minor, the Court held, it does not matter what actual harm resulted, as the sort of harm contemplated by a trench collapse is severe (serious injury and fatality) and the fine should reflect this.

The Court held the sole director, Mr Qiu, failed to exercise the care, diligence and skill that a reasonable officer would exercise in the same circumstance in order to:

• • (i) Acquire, and keep up to date, knowledge of work health and safety matters.

• • (ii) Gain an understanding of the nature of the operations of the company’s business, namely civil works, drainage and related infrastructure works, and of the hazards and risks associated with those operations.

• • (iii) Ensure that the company had available for use, and used, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business.

• • (iv) Ensure that the company had processes in place to consult, coordinate activities with, and cooperate with each other in respect of their activities at the site.

For MRCL and CIL the Court found:

• • That it was reasonably practicable to have effectively consulted, cooperated and coordinated activities with other PCBUs so as to ensure that risks to worker safety at the site were eliminated or minimised.

• • That they should have ensured effective safe systems of work had been established and clearly communicated to workers prior to work beginning at the site.

• • That they should have ensured the excavation was subject to assessment, inspection, and monitoring by a competent geotechnical engineer.

• • That they should have ensured all workers were appropriately trained and assessed as competent at their respective tasks before undertaking work.

• • That they should have identified the hazard posed by the retaining wall on the southern side of the trench and ensured appropriate controls including temporary support works were implemented.”

The two companies were each fined $375,000 (totalling $750,000), with the director fined a further $60,000, bringing total fines to $810,000. In addition, the defendants were jointly ordered to pay $10,000 reparation to the victim, an ACC top-up of $651, and $5,450.76 in regulator’s costs.

The Court commented that the risks in this case were obvious, long-established and cheap to mitigate and eliminate. The fines reflected this.

Companies can face fines that reflect the sort of harm contemplated for a risk, rather than the actual harm that eventuated. So ‘near-misses’ may not be treated lightly by the Court, and employers should conduct business health and safety as if every worst-case scenario contemplated from a hazard/risk will eventuate. Especially where risks are obvious and well understood within the industry.

Need help with health and safety policies or matters? Get in touch with the team at Copeland McAllister. Phone 03 211 0153 or email admin@cmalaw.co.nz. 

Disclaimer: This update provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.

[1] WorkSafe New Zealand v Chimbusco International Limited [2025] NZDC 31034