Waikato earthmoving company fined $275,000 after worker ‘buried alive’ in dirt when trench collapsed on farm

A Waikato earthmoving contractor has been fined $275,000 after a trench collapsed, leaving a worker “buried alive” under 20 cubic metres of dirt.

Anthony Wanoa says he still suffers the psychological trauma of being trapped after a trench he was standing in collapsed around him.

The 43-year-old’s colleague had to frantically use his hands and a spade to dig him free.

Wanoa and a colleague were employed by an Ōtorohanga earthmoving and civil construction business, R & L Drainage, and were in the middle of extending a dairy effluent pond on a Te Kūiti farm on February 17, 2020.

Wanoa was tasked with measuring the depth of the trench but had no previous experience using the equipment. His colleague was using a digger.

Company director Ross Pevreal went to the site to help set up the laser and pole and gave a demonstration while standing on the floor of the trench. Pevreal then left to head to another job - but failed to mention the dangers of working on the trench floor.

Wanoa and his colleague got to work cutting a 25m long, 1m to 3m high trench into the side of a slope on the property.

Anthony Wanoa, 43, tried to sprint his way out of this collapsing 3m high trench without success and was engulfed in dirt as his colleague scrambled to free him. Photo / WorkSafe

As Wanoa’s colleague used the digger and bucket to clear out part of the wall as they reached 3m high, part of it began to crumble.

Wanoa began running but he became fully engulfed in the soil.

During the company’s sentencing in the Hamilton District Court on Thursday, there remained contention around how long it took to free Wanoa.

After discussion around the financial capability of R & L Drainage, and how much of a fine it could pay, Judge Kim Saunders took a starting point of $500,000 before landing at $275,000.

WorkSafe prosecutor Kitty Opetaia claimed it was about 45 minutes, but R & L Drainage’s counsel Matthew King said it was more like 30 minutes.

Either way, Wanoa’s colleague initially used his hands to clear the dirt away so Wanoa could breathe, before using a spade to dig around him and eventually, pull him free from the 20 cubic metres of soil that surrounded him.

Judge Saunders found that in any event, “for Mr Wanoa even one minute or 30 seconds must have felt like a lifetime”.

He suffered a collapsed lung, a broken rib cage, a broken sternum and a broken collarbone that took him 12 months to recover from but he now lives with post-traumatic stress disorder (PTSD) because of the incident.

In his victim impact statement read to the court, he said felt he could no longer live in Ōtorohanga due to rumours that circulated about how and what happened, while even his friends began avoiding him.

“I suffered both physically and psychologically as a result of being buried alive in a trench collapse.

The trench, on the Te Kūiti farm, was 3m high at its deepest end. Photo / WorkSafe

“I had two years in fear thinking I would be to blame for all of this ... I have had to live it over and over.

“I hope now we can reach the end ... and not have to give it any more thought,” he said.

Opetaia said that given the company’s work revolved around excavation the risks associated with the job should have been obvious.

Not only did Pevreal fail to carry out a risk assessment, she said, he never did a geotechnical assessment on the soil, which would prove to be the reason for the trench’s collapse.

“The risk of collapse was foreseeable not only because of the height but also given the condition of the soil.”

Opetaia acknowledged the company’s otherwise good record, early guilty plea and remorse.

King said his client’s remorse was genuine. He said Pevreal had arrived straight after the collapse happened, while his wife, Leigh, came soon after.

“They did what they could until paramedics arrived,” King said.

They kept in touch with Wanoa until their relationship crumbled a year later.

King submitted his client’s culpability was at the lower end given the lower depth of the trench, “but the fact it’s serious, there’s no dispute at all”.

“It was a failure of supervision on that particular job.

“We’re not dealing with a cowboy firm, it’s well-respected within the community, particularly its dairy effluent pond [work].”

Asked by Judge Saunders what went wrong, King said Pevreal went to another site induction which took longer than expected.

“It was on his way back to the site that the accident occurred. If Mr Pevreal had been on site this would not have happened ... he would have been supervising the trench.”

He would have also told Wanoa that he didn’t even need to step into the trench to use the equipment, King said.

The judge agreed with WorkSafe’s submission that the company’s degree of departure from its obligations was “stark”.

“Mr Pevreal’s demonstration to the inexperienced Mr Wanoa was woefully inadequate,” she said.

Both parties had earlier agreed to pay $45,000 emotional harm reparation to Wanoa which she also ordered, along with a $1496 ACC top-up and regulator’s costs of $6240.59 on a charge of exposing both workers to a risk of death or serious injury, arising from a trench collapse.

R & L Drainage was convicted and discharged on a second charge of failing to notify its intention to dig a trench deeper than 1.5m.

Wanoa now works as a business development manager.

Belinda Feek is an Open Justice reporter based in Waikato. She has worked at NZME for eight years and has been a journalist for 19.