Details of successful prosecution against E221750 - Individual

Incident description

The defendant held duties under s.27 of the Work Health and Safety Act 2011 being an officer of a company conducting a business or undertaking of civil earthmoving and associated work.

The company was conducting work at the workplace, placing mulch on garden beds. The defendant (the company's owner and director) was operating a front-end loader while a worker operated a prime mover hitched to a semitrailer. Loads of mulch were placed into the back of the trailer by the front-end loader. The worker would then drive the truck/trailer to different locations to tip the mulch. After one load, the worker was driving the truck/trailer back to a holding area. The director observed bouncing of the trailer, and advised the worker via two-way radio to stop and check the cause. The director drove the front-end loader to where the worker was stopped, and advised it was likely that the hose providing air to the truck/trailer's brakes had come off.

The worker had stopped the truck/trailer on ground having a 8.08 degree gradient and left the engine running when he exited the cabin. He was standing beside the truck/trailer when the director arrived. The director asked the worker if he had the park brake on and says that the worker replied "Yeah”. Very shortly after this conversation the director observed the worker lean in behind one of the rear sets of wheels on the trailer and then lie on the ground and shimmy under the back of it. Moments later the truck/trailer began moving backwards. The trailer wheels rolled over the worker, followed by the wheels of the truck, causing head and torso injuries that resulted in the worker's death.

The director witnessed the incident and was deeply affected. He immediately called the authorities and remained at the scene, providing statements of evidence to Queensland Police officers and making available for inspection and testing all of the relevant plant and equipment. He also co-operated with the regulator and provided a statement and records.

Subsequent inspection revealed that a hose clamp securing an airline, which was part of the truck/trailer's air braking system, had been tightened recently. The hose clamp was located at the extremity of the steel spigot it was fitted to and appears to have been in this position for an extended period. Over time, this situation appears to have allowed the air hose to leak or become disconnected. It was the cause of the air leak, which the worker appears to have rectified causing the truck/trailer to move unexpectedly.

With the relevant air hose disconnected or leaking, the trailer brakes may drag and/or apply. Once this hose was refitted the trailer brakes would release, allowing the vehicle to roll. This could go unnoticed during servicing. The park brake in the truck was operating satisfactorily. On the evidence, the worker did not in fact engage the park brake prior to entering the underside of the combination. The truck and trailer had each been separately inspected and certified as having “no evident defect that would affect its safe use on the road” as part of annual Queensland registration process on 2 June 2015 (truck) and 18 March 2015 (trailer).

The defendant had in place a job safety and environmental analysis for the work of placing mulch in specified locations at the reserve using the front-end loader and truck/trailer, however it did not cover the unexpected disconnection of a brake air hose on the truck/trailer.  There was no formal procedure in place for dealing with the unexpected disconnection of a brake air hose on the truck/trailer.

Court result

The defendant pleaded guilty in the Nanango Magistrates Court on 25 May 2017 to breaching s.32 of the Work Health and Safety Act 2011, having failed to meet his obligation of due diligence to ensure the company met its work health and safety duties.

Magistrate Andrew Hackett fined the defendant $3000 and ordered professional costs of $1000. No conviction was recorded.

The defendant provided an affidavit which his Honour took into account. It showed the deep care and concern the director had for the worker and remorse. The worker's brother and his wife attended court in support of the director.

In reaching a decision, the Magistrate took into account the director's remorse, the fact that he was supported by friends and family of the deceased at court. He took into account that the defendant company was entitled to rely to a certain degree on the worker's experience as a truck driver and there was nothing to counter that the worker told the director he had applied the park brake when the evidence was he had not.

His Honour indicated that small things overlooked could bring about great tragedies. He said this was an emergent situation to which the defendant and the worker responded. The director was there to supervise but had a degree of faith in the worker's competence and he believed the park brake had been applied.

In deciding penalty, Magistrate Hackett took into account:

• early plea (very timely)
• no aggravating features
• no prior history for defendant company

While the incident could really not be anticipated and happened very fast, more steps could have been taken to minimise risk.

• supervision main issue
• deceased was not just an employee but also a close friend
• severe adverse impact on the director very closely witnessing the death of his friend
• small company and good record otherwise
• deep remorse. Assisted family with funeral and estate issue costs to $10,000
• has signs in all trucks now regarding safety measures
• reference show community spirted individual and valued community member
• prosecution concessions and submissions most helpful, and
• emergent situation.

In this case protection of the community was the issue at the forefront and this was a general deterrence decision to inform and make employers aware of the human factors and penalties arising from these types of tragic workplace incidents.

Considerations for prevention

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

When working in the construction industry where there is exposure to risks from unsecured mobile plant or vehicles, 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.

If mobile plant or vehicles require any inspection or maintenance, even on an ad hoc basis, they must be secured in a stationery position.

When deciding and implementing control measures associated with the risk of serious injury or death, 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)

Details