Confined Space Incident
Expert Witness
Independent expert opinion on confined space incidents in Australian legal proceedings. Entry permit systems, atmospheric monitoring, stand-by attendant and rescue arrangements, training adequacy and risk assessment under AS 2865 and the applicable WHS Regulations.
Confined Space Expert Witness Scope
Confined space incidents are among the most deadly category of workplace accident. The characteristic that makes them particularly dangerous is that rescuers who enter without proper preparation frequently become victims themselves, compounding the original incident. Most confined space fatalities in Australia involve either the original entrant or a would-be rescuer who was not adequately prepared.
The expert witness role in confined space matters is to assess whether the space was correctly identified and classified, whether the entry permit system met the requirements of AS 2865 and the WHS Regulations, whether atmospheric testing was carried out correctly, whether a stand-by attendant was in place and whether an adequate rescue plan existed and could be executed without additional casualties.
Karim Ali provides independent expert opinion on confined space matters for plaintiff and defendant solicitors and insurers. His experience at Origin Energy includes direct management of confined space work at major energy infrastructure facilities. Instructions are accepted in workers' compensation and public liability proceedings nationally.
Industries and Environments
- Sewers, stormwater pipes and underground infrastructure
- Storage tanks, silos and hoppers in manufacturing and agriculture
- Boilers, pressure vessels and heat exchangers in energy and industrial facilities
- Tunnels, culverts and underground civil works in construction
- Ships' holds, void spaces and double bottoms in maritime
- Pits, sumps and underground chambers in utilities and mining
- Manholes and access chambers in civil infrastructure maintenance
- Grain storages and agricultural bins
Confined space expert opinions are delivered as expert witness reports compliant with the applicable court or tribunal code of conduct. Site inspections are frequently warranted to assess the physical characteristics of the space.
Entry Permit Systems and Atmospheric Monitoring
The entry permit system and atmospheric monitoring are the two most critical controls for confined space safety. Their absence or inadequacy is the primary contributing factor in most confined space fatalities and serious injuries in Australia.
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Entry Permit System
The WHS Regulations require a confined space entry permit for entry into a permit-required confined space. The permit must be prepared before entry, must be current for the duration of the work and must set out the hazards, the control measures, the atmospheric testing results, the personnel involved and the rescue arrangements. The analysis assesses whether a permit was prepared, whether it was adequate and whether it was followed.
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Atmospheric Monitoring Requirements
AS 2865 requires atmospheric testing before entry into a confined space and continuous monitoring during work where atmospheric hazards may develop. The analysis assesses whether testing was conducted using calibrated equipment by a competent person, whether the results indicated the space was safe for entry, and whether monitoring continued while workers were inside.
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Stand-by Attendant Requirements
A stand-by attendant must be stationed outside the confined space whenever a worker is inside. The attendant must maintain communication with entrants, monitor conditions, be capable of initiating a rescue and be the person who raises the alarm. The analysis assesses whether an attendant was in place, whether they were adequately trained and whether they remained at their post throughout the work.
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Rescue Plan and Equipment
A confined space rescue plan must be prepared before entry, must be specific to the space being entered and must be capable of being executed without the rescuer entering the space if possible. The analysis assesses whether a rescue plan existed, whether it was adequate for the specific space and hazards and whether rescue equipment was present and ready for immediate use.
Confined Space Classification Under AS 2865
Australian Standard AS 2865 Confined Spaces sets out the framework for classifying confined spaces and the controls required for each class. The expert analysis begins by assessing whether the space involved in the incident was correctly identified and classified, as this determines the level of control required.
Misclassification of a space is a common contributing factor in confined space incidents. Where a duty holder failed to classify a space as a confined space, failed to identify it as a permit-required confined space, or treated a permit-required space as though it required only a non-entry confined space assessment, the analysis addresses this failure directly.
A space that is entered only with the use of retrieval equipment and where the atmospheric hazard risk is low. Work is performed from outside the space where possible. Minimum controls apply.
A confined space that contains or has the potential to contain a serious hazard. Requires a confined space entry permit, atmospheric testing, stand-by attendant, rescue plan and trained personnel before any person enters.
Atmospheric and Physical Hazards Assessed
The confined space risk assessment must identify all potential atmospheric and physical hazards in the specific space. The expert analysis assesses whether all relevant hazards were identified and whether the controls implemented were adequate for each hazard.
- Oxygen deficiency from displacement by other gases or biological activity
- Oxygen enrichment creating a fire and explosion risk
- Flammable or explosive gas concentrations
- Toxic gas concentrations including hydrogen sulphide, carbon monoxide and carbon dioxide
- Engulfment by bulk materials including grain, sand or sludge
- Entrapment by converging walls or moving mechanical parts inside the space
- Extreme heat or cold within the space
- Noise and vibration from work or plant within the space
Training and Competency for Confined Space Entry
All persons involved in confined space work, including entrants, stand-by attendants and rescue personnel, must be trained and competent for their specific role. Training for confined space work is a defined competency under the WHS Regulations and must be provided by a competent person.
The analysis assesses whether all personnel involved in the confined space work at the time of the incident had received confined space training, whether the training was current, whether it covered the specific type of space and hazards involved, and whether competency was formally assessed and recorded.
- Confined space entrant training and competency records
- Stand-by attendant training specific to confined space duties
- Rescue team training and emergency response drills
- Atmospheric testing equipment training and calibration records
- Refresher training frequency and whether it was maintained
- Supervisor training in confined space management
Confined Space Risk Assessment Adequacy
The WHS Regulations require a risk assessment to be conducted before any work in a confined space. The risk assessment must identify all hazards, assess the risks and determine the control measures required. The analysis assesses whether the risk assessment was conducted, whether it was adequate for the specific space and whether the controls identified were implemented.
Generic confined space risk assessments that are not specific to the particular space and work are a common deficiency identified in confined space matters. The analysis distinguishes between an adequate site-specific risk assessment and a generic document that did not address the actual hazards present in the space.
- Whether the risk assessment was specific to the space and the planned work
- Whether all atmospheric hazards were identified by testing or inference
- Whether physical hazards were identified and addressed in the controls
- Whether the risk assessment was reviewed before each entry
- Whether the risk assessment was updated following changes to the work
- Whether a competent person prepared and reviewed the risk assessment
Common Confined Space Incident Patterns
Confined space incidents follow recognisable patterns that reflect common failures in the management controls required by the regulations and by AS 2865. The expert analysis identifies which patterns are present in each matter.
Entry into a permit-required confined space without preparing a confined space entry permit. Often occurs when workers or supervisors do not recognise the space as a confined space or underestimate the hazards, particularly in familiar or frequently-entered spaces.
An unplanned rescuer enters the space to assist an incapacitated entrant and is themselves overcome. This occurs where no rescue plan was prepared, no stand-by attendant was present or the attendant entered the space without proper equipment. Most multi-fatality confined space incidents follow this pattern.
Testing conducted at the entrance only, without testing the full volume of the space. Gases that are heavier or lighter than air stratify within confined spaces, and a reading at one level does not indicate conditions throughout the space. Entrants encounter hazardous conditions at depth that were not detected at the entry point.
The space was safe at entry but an atmospheric hazard developed during the work, either from the work activity itself such as welding or painting, or from an external source such as a nearby process or infrastructure. Continuous monitoring was not in place to detect the change in conditions.
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Is AS 2865 mandatory or just guidance?
AS 2865 Confined Spaces is referenced in the WHS Regulations and in the confined space code of practice. The standard itself is not directly mandatory under the Act, but the WHS Regulations impose specific obligations in relation to confined spaces, and compliance with AS 2865 is the accepted means of meeting those obligations. Departure from the standard is highly relevant to whether the duty holder acted reasonably, and courts consistently refer to the standard in assessing the adequacy of confined space management.
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Can the expert assess a matter where the space was not recognised as a confined space?
Yes. Failure to identify and classify a space as a confined space is itself a failure to manage the risk. The duty holder is required to identify all confined spaces in the workplace and assess whether entry controls are required. Where the space that caused the incident was recognisable as a confined space by a competent person, the failure to identify and classify it is addressed as a breach of the duty holder's risk management obligations.
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Does the expert need to inspect the confined space?
A site inspection of the confined space is often warranted because the physical characteristics of the space, including its dimensions, entry points, ventilation, the location of hazard sources and the access arrangements for rescue, are frequently relevant to the analysis. Access to the space must be arranged safely, with all necessary entry controls applied during the inspection. Where the space has been modified or is no longer accessible, the analysis is based on photographs, plans and witness accounts.
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Can the expert address a matter where both the entrant and a rescuer were injured?
Yes. Matters involving both an entrant and a rescuer require the analysis to address the circumstances of both incidents, including why the rescue attempt failed and whether an adequate rescue plan would have prevented the rescuer's injury. These matters often involve the most serious consequences and require thorough analysis of all aspects of the confined space management system, including the training and equipment available to the stand-by attendant and any would-be rescuers.
Instruct on a Confined Space Matter
Contact Karim Ali to discuss the matter, confirm availability and obtain a fee estimate for the expert opinion.