Details of successful prosecution against E189693

Incident description

The defendant company held a duty under s.19(2) of the Work Health and Safety Act 2011, being a person conducting a business or undertaking. Its undertaking is goods transport and logistics throughout Australia and New Zealand.

On 21 October, 2013 a prime mover and trailer fitted with a Vehicle Loading Crane (VLC) was travelling on a public road. It was driven by a worker of the defendant company whose duties included transporting goods to various worksites and unloading them via the VLC. The crane is operated by controls located at its base. Stabiliser arms fitted to the vehicle are deployed either side of the crane to ensure it can be operated safely during loading and unloading. Whilst in transit the stabiliser arms are secured by a primary and secondary locking mechanism.

As the vehicle made a right turn, the left-hand stabiliser arm extended as the vehicle travelled along the road. The stabiliser arm struck a cyclist traveling in the same direction as the vehicle. The cyclist was fatally injured.

Court result

On 25 October 2016, the defendant pleaded guilty in the Holland Park Magistrates Court to breaching s. 32 of the Work Health and Safety Act 2011, having failed to meet its work health and safety duty and was sentenced. Magistrate Sheryl Cornack fined the defendant $200,000 and ordered professional and court costs totaling $1082.10. No conviction was recorded.

The defendant company relied on a sub-contractor, the crane manufacturer, to install and maintain the VLC; including the locking mechanisms. The court heard the primary securing mechanism on the left-hand stabiliser arm had been inadvertently defeated by the transport driver and this occurred due to it, first, not meeting the relevant Australian Standard and secondly, deficiencies in the driver's training in how these devices operated. Further, approximately 8 months before the incident the secondary mechanism had been identified by a previous driver as defective. However, it was not repaired.

The driver had been employed for 1 month by the defendant company. He was an experienced driver. Further, the court heard that there was no operating manual for the VLC in the vehicle cabin and the worker's training was deficient in that he was not instructed in the operator's manual nor was he trained in the stabiliser arm locking mechanism on the particular vehicle; one he had never driven prior. The driver's training had been “on-the-job” and there were no records to establish instructions he received.

Her Honour saw the breach as avoidable and the consequence tragic. She took into account the impact on the family as contained in a victim impact statement.

In deciding penalty, her Honour noted the defendant is a relatively large company, operating in Australia and New Zealand with a transport fleet of approximately 130 vehicles, and accepted that the hazard of a stabiliser arm was known to it and that measures were available. The court accepted that this type of equipment can be inherently dangerous and if a stabiliser was not adequately secured, it exposed vulnerable people (members of the public) to harm.

In the defendant's favour, Magistrate Cornack took into account it had not been prosecuted previously for any work health and safety breach and acknowledged it's timely plea of guilty (immediately after withdrawing from the Enforceable Undertaking process), demonstrated remorse and post-incident measures directed at implementation of audible alarms for all its transport fleet (to warn if a stabiliser arm was not secured). It had improved driver training on VLC operations and improved systems for maintenance of its vehicle fleet.

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 unsecured mobile plant, 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 from being struck by plant, obligation holders should consider:

• Work Health and Safety Act 2011
• How to manage work health and safety risks code of practice 2021 (PDF, 0.65 MB)
• Managing risks of plant in the workplace code of practice 2021 (PDF, 1.57 MB)

Details