Employer Fined for Defective Equipment Causing Injury

An employer was found liable for failing to ensure the safety of its equipment, leading to an employee's injury. The court fined the employer under the Occupational Health and Safety Act 1983.

Industrial Relations Commission of New South Wales in Court Session

CITATION : [NAME] v [COMPANY] [2003] NSWIRComm 163 [NAME] PARTIES : [COMPANY]: IRC 1281 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under s 15 (1) of the Occupational Health and Safety Act - Plea of Guilty - Civil construction - Employee injured whilst attempting to stop unmanned moving water tanker - Hand brake on truck defective - Faulty hand brake known for approximately two months prior to accident - Defendant had no system for actioning reported defects of plant or equipment - Foreseeability - Simple and straight forward means to avoid risk - Contrition - Early guilty plea - Conviction - Penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 [NAME] v [COMPANY] (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No 1214 of 1990, 30 June 1992) [COMPANY] v WorkCover Authority of NSW ([NAME]) (1999) 90 IR 464 Tyler v Sydney Electricity (1993) 47 IR 1 CASES CITED : Wong v Melinda Group Pty Ltd (1998) 82 IR 118 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 WorkCover Authority of New South Wales ([NAME]) v [NAME] [2003 NSWIRComm 31 WorkCover Authority of NSW ([NAME]) v [COMPANY] (No 2) (2000) 99 IR 163 HEARING DATES: 03/11/2003 DATE OF

JUDGMENT: 06/12/2003

[NAME] of counsel Solicitor: [redacted] LEGAL REPRESENTATIVES: DEFENDANT [NAME], SC Solicitor: [redacted]

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Boland J Thursday 12 June 2003

Matter No IRC 1281 of 2002

[NAME] v [COMPANY] under section 15(1) of the Occupational Health and Safety Act

JUDGMENT [2003] NSWIRComm 163 1 [COMPANY] ("the defendant") carried on the business of civil construction/road works at various sites throughout New South Wales. On 15 March 2000 the defendant was carrying out road works at the [NAME], Byron Bay adjacent to the [ADDRESS]. [NAME], who was employed by the defendant as a labourer, was asked to drive a water tanker truck by another operator employed by the defendant. The handbrake on the truck was defective and had been for a number of weeks. [NAME] could not recall whether he was informed that the handbrake was not working before he began driving the truck.

2 Whilst he was operating the truck [NAME] parked it on a slope and said he applied the handbrake prior to getting out of the truck. [NAME] did not engage low gear, did not turn off the engine and did not chock the wheels. The truck started to roll downhill. [NAME] ran to the truck, opened the door, reached in and pulled the handbrake on but to no effect. The truck collided with another vehicle and [NAME] was caught in the door. He suffered a dislocated hip and lacerations to his scrotum and groin area. 3 The defendant was prosecuted under s 15(1) of the Occupational Health and Safety Act 1983 in relation to the incident involving [NAME]. It was alleged in the amended application for order that the defendant, being an employer at a site located at the [NAME], Byron Bay in the State of New South Wales, adjacent to the [ADDRESS], with a chainage of 32200 ("the site") did fail, on 15 March 2000, contrary to s 15(1) of the Occupational Health and Safety Act 1983 (NSW) to ensure the health, safety and welfare at work of all of the defendant's employees and, in particular, [NAME] in that: (a) it failed to provide or maintain plant that was safe and without risks to health by failing to ensure that the handbrake on the Isuzu water tanker truck, Registration Number QYX196 ("the truck"), was in working order and not defective; (b) it failed to provide or maintain a safe system of work for the maintenance of the Defendant's plant, in particular, the truck, to ensure that once any representative of the Defendant was notified that the truck needed maintenance work, in particular, replacement of the handbrake, that such work would be undertaken and that, pending the completion of such work, the said truck would be taken out of service.

4 The defendant pleaded guilty to the charge. The plea was made on the basis of an amended application for order filed in Court on 11 March 2003. Arising out of the same incident, [NAME], a foreman employed by the defendant, was charged under s 19(a) of the Act. [NAME] pleaded guilty and was sentenced on 18 February, 2003 (see WorkCover Authority of New South Wales (Inspector Ken Martin) v Russell Larkham [2003] NSWIRComm 31.

5 An agreed statement of facts was tendered by the prosecution. The statement described the incident as follows:

8. At all material times the defendant owned an Isuzu water tanker truck, Registration Number QYX-196 ("the truck"). The truck carried large volumes of water for spraying freshly graded sections of road. The truck weighed approximately 5.5 tonne unladen and approximately 13.5 tonne when it was full of water.

9. On 15 March 2000, [NAME] was asked to drive the truck by [NAME], an operator employed by the defendant. This was the first time [NAME] had ever driven the truck, however [NAME] held the relevant C Class drivers licence which licenced (sic) him to drive road trains, dump trucks, rollers and water trucks. 10. [NAME] had shown him how to turn the water on and fill it up. [NAME] stated that he could not recall whether or not he was informed by [NAME] that the handbrake was not working on the truck, although he was told there was some "gear trouble". [NAME] states that he told [NAME] that the park brake did not work and that he would need to place the truck in low gear and shut the engine down.

11. At first [NAME] was working at the top of the hill. [NAME] was at the bottom of the hill in a [NAME] tanker. He was watering an area which was being rolled by [NAME], a roller operator employed by the defendant. [NAME] then reversed back and his left rear wheel went into some soft material and he did not have the power to pull the [NAME] tanker back out. 12. [NAME] received a call from a grader driver and drove the truck to the site and sprayed the gravel. [NAME] parked the truck slightly uphill from [NAME]'s vehicle, stopped the truck, and exited the truck to walk down to [NAME]. [NAME] said he applied the handbrake prior to getting out of the truck. [NAME] did not follow instructions that [NAME] says he gave to [NAME] as set out in paragraph 10 above and did not engage low gear and shut the engine down. [NAME] parked on a slope and did not place chocks under the wheels of the truck.

13. As [NAME] and [NAME] were talking, [NAME] looked up and saw the truck starting to roll downhill towards the driver's side of [NAME]'s truck. [NAME] called out to both men to "look out". [NAME] thought he saw the truck heading towards the highway traffic. 14. [NAME] ran to the truck, opened the door, reached in and grabbed the steering wheel with one hand and pulled the handbrake on. [NAME] thinks the handbrake came straight out. The truck collided with [NAME]'s vehicle. [NAME] was caught in the door. He then fell between the two vehicles on the ground.

15. In the subject accident [NAME] suffered a dislocated hip and lacerations to his scrotum and groin area.

6 According to the agreed statement of facts subsequent investigations into the incident revealed the following:

16. Prior to the accident on 15 March 2000, it was the Defendant's procedure that, prior to operating a vehicle, all drivers on site completed an Operator Daily Pre-Start Checklist. This involved placing a tick or a cross on the checklist which listed such items to be inspected as brakes, fuel, park brake, horn, seatbelts, airconditioning and tyres. The checklist was collected at the end of each week by [NAME], the defendant's works foreman, who signed the checklists and placed them in the tray of the site engineer ([NAME]). The site engineer filed the checklists away. 17. [NAME] stated that he signed the checklists for receipt only, and that it was not his job to report any defect on the checklist. [NAME] stated that he had the authority to stand plant down if he thought it was severely defective, or at least to bring it to someone's attention.

18. The Defendant's foreman running the plant, [NAME], was responsible for arranging major repairs to any plant and equipment and his responsibility would have extended to the defective handbrake.

19. The Defendant's drivers completing the checklists had recorded a defective handbrake on the truck on the checklist for a period of approximately two (2) months prior to the accident from about 5 January 2000 onwards. 20. [NAME] was aware that the hand brake on the truck was faulty a few weeks prior to the accident. He did not think it was very important as the truck could still be operated without the handbrake working. The truck was used almost everyday for the previous three (3) months during work hours. Other employees of the Defendant, in particular, [NAME] and [NAME] were also aware that the handbrake was faulty and had operated the truck with a faulty handbrake over a period of several months. [NAME] removed the pin from the handbrake stem and placed it in the ash tray to make it clear to operators that the handbrake was inoperable. [NAME] and Mr [NAME] parked the truck by turning it off and placing it in low gear to prevent it rolling when parked. 21. [NAME] had indicated on the Pre-Start Checklist that the handbrake was defective. [NAME] had also indicated on the Pre-Start Checklist for the previous two weeks prior to the accident that the handbrake was defective.

22. The Defendant's previous operator and plant fitter, [NAME], informed several people of the defective handbrake. Steps had been taken to repair the handbrake, however the required cable was not available. … 24. The Isuzu water truck was not tagged or immobilised because [NAME] did not consider the defect was essential to the safe operation of the truck, and did not see a danger to any person arising from the continued operation of the truck.

Accordingly, he did not bring the defect to the attention of Mr [NAME] for Mr [NAME] to arrange its repair and did not stand down the truck. … 26. An inspection of the truck following the accident revealed that the pin connecting the handbrake cable had been disconnected. As such, the handbrake shaft extended to its maximum and, without resting on any position, it then fell to the floor.

27. Following the accident the defendant's Project Manager, [NAME], carried out an investigation of the accident. Mr [NAME] also directed that the truck be removed from service. Immediately after the accident the Defendant revised all checklists to ensure persons were aware of their responsibilities and the Defendant's procedures regarding defective plant. The revised Pre-Start Checklist introduced by the Defendant provided for the inclusion of comments and the recording of repairs required and the completion of such repairs.

7 Other evidence in the proceedings consisted of: (i) A factual inspection report relating to the accident made out by [NAME] on 18 August 2000. (ii) A bundle of four colour photographs showing the area where the accident happened and traffic volume. (iii) A bundle of 8 colour photographs showing the vehicles involved in the accident. (iv) A statement of the defendant's prior convictions under the Act. There were two prior convictions, the first being on 30 May 2002 under s 16(1) of the Act in respect of which the defendant was fined $91,500 and the second being on 5 November 2002 under s 15(1) of the Act in respect of which the defendant was fined $105,000. (v) A witness statement by [NAME]. (vi) An affidavit of [NAME], managing director of the defendant. 8 [NAME] was not required for cross examination. His evidence may be summarised as follows:

· The defendant is a family company and [NAME] is the sole director. The defendant has operated since 1983. · The defendant is principally engaged in road and bridge construction. · The number of employees employed by the defendant rises and falls in accordance with work in hand and the industry cycle. On average the defendant employed 32 people over the last 12 months. · The defendant relies heavily on the skill and ability of the people that it employs. The deponent always tried to ensure that the defendant has people in charge of its sites that are competent and experienced and in whom he has confidence to ensure that the job is done properly. In particular, he has sought to ensure that all of the employees are capable, competent and aware and ensure that their duties to look after the safety of the defendant's employees are fulfilled to the utmost. Safety is paramount. · The defendant has, for many years, engaged professional consultants to advise and document the workplace Occupational Health and Safety plan as well as to prepare the defendant's safety handbook. Every employee is issued with this booklet. Every foreman in charge of a site is provided with the company's Occupational Health and Safety plan. An Occupational Health and Safety Plan was in place at the [NAME]. Depending upon the site, a Safety Officer is also appointed which may or may not be the Foreman. On larger sites, such as on Ewingsdale, the defendant has safety committees. The Ewingsdale Safety Committee met fortnightly.

· The defendant regularly commissions audits of its safety systems. · Following the breaches which led to the two earlier convictions under the Act the defendant took appropriate action to address the risks to safety. · The defendant took immediate remedial action following the incident involving [NAME]. The deponent personally regretted what happened to [NAME]. The defendant employed [NAME]' father on site to further assist the family's financial position. The deponent considered that [NAME] would derive support from having his father employed on the same site, and wished to make [NAME]' return to work as easy as possible. · [ADDRESS] should take into account that the defendant is a family company and that any penalty paid will in effect be paid by the deponent's family and himself.

· The defendant's income diminished between 2001 and 2002. · A substantial penalty will significantly affect the capacity of [NAME] to bid for work for the Roads and Traffic Authority, the ACT Government or local authorities or to obtain that work.

Consideration

9 The primary factor to be considered in relation to penalty is the objective seriousness of the offence. In this case it was charged that the defendant failed to provide and maintain a safe system of work for the maintenance of the water truck and failed to provide or maintain the truck in a condition that was safe and without risks to health and safety by failing to ensure the handbrake on the water truck was in proper working order.

10 This is not a case where an employer completely ignored a known and apparent danger or had no regard to appropriate occupational health and safety standards in the workplace. The defendant had in place an occupational health and safety plan for the [NAME] under which new employees were required to undertake a safety induction program. Each employee is issued with a safety plan and the plan issued to [NAME] contained information about how to safely immobilise a truck on a slope that is, by engaging low gear and using chocks behind the wheels. 11 The defendant had also set up a safety committee that met fortnightly and a system of "toolbox meetings" where employees could raise questions relating to health and safety. 12 The defendant had in place a system whereby prior to operating a vehicle, all drivers on site were required to complete an Operator Daily Pre-Start checklist. This involved placing a tick or a cross on the checklist which listed such items to be inspected as brakes, fuel, park brake, horn, seatbelts, airconditioning and tyres. The checklist was collected at the end of each week by [NAME], the defendant's works foreman, who signed the checklists and placed them in the tray of the site engineer. This is where the defendant's safety system broke down. Despite the fact that drivers of the water truck had indicated on the checklist that the handbrake was defective, and despite the fact that [NAME] was aware of the defective handbrake, he did not consider the defect was essential to the safe operation of the truck, and did not see a danger to any person arising from the continued operation of the truck.

Accordingly, he did not bring the defect to the attention of the person responsible for arranging its repair and did not stand down the truck.

13 As it has already been noted [NAME] pleaded guilty to a charge under s 19(a) of the Act and sentence was passed on 12 February, 2003.

14 [NAME]'s failure to take action to have the handbrake repaired was compounded by [NAME]'s failure to follow instructions in relation to the parking of a vehicle on a slope. That is, to place the vehicle in low gear, chock the wheels and turn off the engine. [NAME] also failed to observe the instruction that he was not to board a moving vehicle.

15 Although there were failures on the part of certain employees, the defendant also failed in its duty to ensure the health and safety of its employees. The handbrake on the water truck remained defective for a period of at least several months yet despite several employees, including the works foreman being aware of the defective handbrake, the safety systems that were in place failed to avoid or prevent a serious risk to safety.

16 The mere putting in place of a system to avoid risks to safety may often prove to be quite inadequate to achieve its purpose. Such systems require constant monitoring and need to be regularly reinforced with employees. This is not an easy issue to manage, especially for employers who operate in inherently dangerous industries and who may have more than one site at which they are working. But the duty on employers in relation to occupational health and safety is one of strict liability. They are required to "ensure" the health and safety of employees whilst they are at work. In this respect I am reminded of the observation of Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at p 85: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace.

17 The defendant's failure to repair the handbrake and the failure to take the water truck out of service whilst the repairs were undertaken produced a serious risk to safety. Fully laden, the truck weighed some 13.5 tonnes and was used almost every day for two months prior to the accident. I consider that given the nature of the work for which the truck was being used, the sloping terrain and the proximity to traffic it would have been essential that its handbrake was in good working order. It was reasonably foreseeable that in the absence of a properly working handbrake, left unattended the truck might roll, thereby creating a detriment to safety.

18 The risk to safety caused by the defendant's failures was easily rectified; the truck was taken out of service and the handbrake repaired.

19 The occurrence of death or serious injury may manifest the degree of seriousness of the risk to safety: [NAME] v [COMPANY] (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No 1214 of 1990, 30 June 1992); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; [COMPANY] v WorkCover Authority of NSW ([NAME]) (1999) 90 IR 464 at 476; WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 428-428; WorkCover Authority of NSW ([NAME]) v [COMPANY] (No 2) (2000) 99 IR 163 at 185. In this case [NAME] suffered a dislocated hip and lacerations to his scrotum and groin area. He could easily have been killed.

20 As to general deterrence, the important consideration is to set the penalty at a level that will realistically operate as a deterrent but not so high as to be oppressive. As to specific deterrence, I note the two relatively recent convictions against the defendant but they do not indicate an habitual offender or a company that does not take its occupational health and safety responsibilities seriously. The defendant has been in operation for 20 years and has only two recorded convictions against it in an industry that may be regarded as dangerous. In relation to the two previous convictions, I note that the defendant took proper steps to avoid any recurrence of the risks to safety that attracted the penalties in those cases. Further, it is clear that the defendant has taken the necessary steps to avoid a recurrence of the accident that is the subject of these proceedings. In this respect the "Operators' Pre-Start Daily Checklist" was revised to provide explicitly for action to be taken in respect of any notified issues, to incorporate a weekly summary of the required repairs and the date the repair is to be completed; a toolbox meeting was held on 17 March 2000 and each worker was instructed to ensure ownership of responsibilities in relation to the checklist, and to ensure that each employee properly understood its operation, and to reiterate the policy that no employee is to attempt to board a moving vehicle or plant, but to let it go; new operators are to be given detailed instruction on the fault procedure and both individual and streamlined responsibilities in relation to defective plant and equipment; a complete revision of all plant and equipment on site was undertaken to ensure all other plant and equipment was in a safe working order, and any unsafe plant was stood down until safe. I do not consider there is any need for the penalty to reflect a substantial element in relation to specific deterrence but the defendant will need to be most vigilant in ensuring that any occupational health and safety plans meet the purpose for which they are designed and employees are regularly reminded in a meaningful way as to what is required of them in relation to occupational health and safety.

21 I observe, of course, that in light of the defendant's previous convictions the scale of maximum penalty has increased to $825,000, which reflects the seriousness with which the community views repeat offenders in this area of the law.

22 I turn to the relevant subjective factors to be taken into account in sentencing the defendant. Firstly, there was a early plea of guilty the utilitarian value of which the prosecution conceded would be at the higher end of the scale of discount. Secondly, the defendant had cooperated with the prosecutor in his investigations. Thirdly, it is clear that the defendant takes its occupational health and safety responsibilities seriously and moved quickly to remedy the defects in its safety system at the Ewingsdale Exchange site. Fourthly, and commendably, the defendant assisted [NAME] in his rehabilitation and employed [NAME]' father to ease the burden on the family. Fifthly, the defendant has demonstrated genuine remorse. Sixthly, the defendant is a small to medium sized family company and it will be [NAME] and his family who will bear the burden of the fine.

23 Having regard to the objective seriousness of the offence committed by the first defendant, I consider an appropriate penalty to be $115,000 with a discount for the early plea of 25 per cent and a further 10 per cent for other subjective factors. This results in a fine of $74,750. Orders

[ADDRESS] makes the following orders: 1) The offence is proven and a verdict of guilty is entered.

2) The defendant is convicted of the offence as charged.

3) The defendant is fined an amount of $74,750 with a moiety thereof to the prosecutor.

4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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