Details of successful prosecution against E165393

Incident description

Richers Transport Pty Ltd (Richers) held duties under s. 19(1) of the Work Health and Safety Act 2011 being a person conducting a business or undertaking of road freight transport throughout Australia.

On the 23^rd of May, 2012 a worker employed by Richers was tasked with delivering timber poles to a construction site, on his own.  The job included driving a truck mounted with a Vehicle Loading Crane (VLC) and unloading the timber poles using the crane and log grab attachment.

The worker arrived at the job, engaged the stabiliser legs on the truck and began to connect the hydraulic lines from the crane to the log grab attachment.  While he was doing this, the worker had the remote control for the crane around his waist.

The worker had difficulty connecting the hydraulic lines and in attempting to connect the final line he inadvertently struck the remote leaver causing the crane to quickly rotate towards him, pinning him against the stabiliser leg, causing fatal crush injuries.

The worker had successfully completed a VLC training program.

Court result

Richers pleaded guilty to failing to assess the hazard, failing to identify the placement of the log grab cradle on the VLC as a risk to workers, failing to provide sufficient supervision by an experienced VLC operator, failure to provide adequate induction and training about how to operate the VLC, and failing to have written procedures specifically for loading and unloading procedures using the VLC.

It was held that the company could have provided plant that did not require the log grab to be removed and reconnected each time the vehicle was transported, provided plant that had the log grab cradle in a safe location and where the operator was not required to stand between the boom head and stabilizer leg. Further the company should have provided more detailed training and instruction to the worker, including specific training in relation to hooking up the log grab attachment.

The company had a previous entry from 2008 in relation to breaching s 24 of the Workplace Health and Safety Act 1995.  The prior incident involved a forklift incident where a worker suffered a broken arm and hip. The company was previously fined $30,000 with no conviction recorded.

Richers application for an enforceable undertaking (EU) was refused by the Regulator.  Following notice that the EU process was not successful, the company indicated it would plead guilty. The plea was considered to be an early one.

On the 21^st of November 2016 the defendant formally pleaded guilty to breaching s. 32 of the Work Health and Safety Act 2011.

The Magistrate sentenced the defendant company to an $180,000 fine and costs totaling $1560.  A conviction was recorded.

In reaching a decision, the Magistrate noted the following:

• The use of heavy equipment has inherent dangers and a company has a duty to provide a workplace that is safe from injury or death.
• The provision of training through an external provider (as was done here) does not relieve a company of making its own assessments of the risks involved.
• The impact of the failures resulted in the most catastrophic consequence – death of a young man.
• Other companies need to understand they have a responsibility to workers and the sentence imposed needed to act as a deterrent against taking short cuts.
• The directors of the company were deeply affected by the incident and demonstrated remorse.
• The company had since implemented significant changes to safety procedures at great cost.
• The company had ceased operation of all VLCs and no longer undertook work that involved VLCs which resulted in a loss of $450,000 annual profit.
• The company demonstrated remorse through community mindedness including making contributions to young driver awareness programs and a memorial event in the deceased worker's name.
• There was no malfunction of the equipment
• Significant penalties should be imposed on companies that fail under the Act.
• The company pleaded guilty at an early stage.

In recording a conviction, the Magistrate went through section 12 of the Penalties and Sentences Act and observed:

• There was no intent involved but the nature of the offence was serious.
• Offender's character and age are not as relevant when dealing with a company, other than noting the defendant had a previous conviction for a workplace health and safety breach.
• The chances of finding employment and economic or social wellbeing are not directly relevant factors.  The magistrate noted that the company was required to disclose whether or not it had been convicted of an offence in supply contracts and insurance declarations. The magistrate noted that the fact the company had pleaded guilty to the offence means it has been convicted of an offence and would likely need to disclose it, and it could not be demonstrated that the recording of the conviction would impact the company's economic wellbeing.
• The fact that the company had a previous breach meant that the work health and safety issues should have been at the forefront of its mind.

Considerations for prevention

(commentary under this heading is not part of the court's decision)

When working in the transport industry where there is exposure to risks from crush injuries from Vehicle Loading Cranes, duty holders should apply a risk management approach to ensure the selection of suitable control measures.

Risk management involves identifying the hazards, evaluating the consequences and likelihood of harm that may result from the hazard, deciding and implementing control measures to prevent or minimise the level of the risk from the hazard and monitoring the effectiveness of the control measures to ensure they remain working correctly.

When deciding and implementing control measures associated with the risk of death or injury, obligation holders should consider:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011
• How to manage work health and safety risks code of practice 2021 (PDF, 0.65 MB)
• Mobile Crane Code of Practice 2006 (PDF, 1.34 MB)

Details