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Details of successful prosecution against E191268

Incident description

The defendant, Charters Towers Regional Council held duties under s.19 (1) of the Work Health and Safety Act 2011.

On 22 November 2013 a worker was fatally struck by a reversing truck while performing roadworks. A group of four Council workers were conducting minor dig out work on a 100 metre stretch of the highway. At the end of the work a worker was asked to reverse a hino truck down the stretch of road to compact the ground. At the same time the other workers were conducting various tasks. The deceased, an experienced Council worker, was picking up brooms and walking across the road site when the truck began reversing. The truck driver did not see the deceased and continued to reverse striking him. He continued to reverse until another worker alerted him of the incident.

The Court heard that though there were risk assessments in relation to other matters, there were no safety systems in place in relation to reversing plant and the hazards associated with it. The Court found that there was no traffic management plan restricting the movement of workers while the trucks were reversing, there was no spotter who could have intercepted the deceased and further alerted the driver to the presence of a pedestrian. Further, there was no exclusion zone which could have been easily implemented.

Court result

After a one-day trial, the defendant was found guilty in the Charters Towers Magistrates Court to breaching s.32 of the Work Health and Safety Act 2011, having failed to ensure the safety of workers.

Magistrate Mack fined the defendant $170,000 and ordered professional and court costs totalling $2,464.40. The court ordered that a conviction be recorded.

In sentencing, the Magistrate noted that the matter went to trial and despite the contrition voiced by the defendant, the statement in the submissions by defence that “you don't need a toolbox talk to know not to walk behind a reversing truck” was not reflective of that. The Magistrate noted that the Council had been transparent and cooperative in the investigation and it was accepted that remorse can be shown despite taking the matter to trial. The Magistrate emphasised that the point of the legislation was to get workers home safely. Even though the workers on this day were experienced, and no one expected the deceased to walk behind the truck, there was simply no measure in place to prevent him from doing so, which further highlighted the inadequacies.

His Honour took guidance from NSW decisions of a similar nature, confirmed that while general deterrence was a factor to be taken account, specific deterrence was also important because these jobs are still conducted by the Council.

In issuing the fine, the Magistrate considered the victim impact statement of the deceased's wife and made it clear the fine was not indicative of the value of the deceased's life.

Charters Towers Regional Council filed appeals against conviction and sentence on 17 February 2017. The decision to dismiss this appeal was handed down 24 October 2018, by the District Court.

Considerations for prevention

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

When working in the Public Administration industry where there is exposure to risks from injury or death from being struck by 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 or serious injury, obligation holders should consider:

Details

Industry:
Public administration and safety
Defendant:
E191268
Date of offence:
22/11/2013
Injury:
Fatality
Court
Charters Towers Magistrates Court
Magistrate:
Magistrate Ross Mack
Legislation:
s.32 of the duty under s.19(1) Work Health and Safety Act 2011
Decision date:
13/02/2017
Penalty:
Fined $170,000
Maximum Penalty:
$1,500,000
Conviction recorded:
Yes
CIS event number:
E191268