Details of successful prosecution against E190540

Incident description

On 6 November 2013, a worker suffered a laceration and muscle damage while using a pebblecrete pump in the construction of a swimming pool.

Two workers were using the pump and at the conclusion of work, one of the workers started cleaning the hopper and the second worker assisted him. Cleaning inside the hopper and in close proximity to the agitator was a routine task undertaken after each job. The hopper had a metal grate covering its opening. The metal grate could be lifted up so workers could access the interior of the hopper for cleaning. One of the workers stopped cleaning to have a break while the second worker continued cleaning, using a chipping bar to remove the pebbles stuck inside. While doing this, the second worker activated the agitator, not realising that the other worker had returned from his break and was cleaning inside the hopper.

The pebblecrete pump did not have guarding as stated in section 208(2)(b) of the Work Health and Safety Regulation 2011. There was no appropriate guarding to the area of the plant where access was necessary during cleaning. The worker who had returned from his break, received a deep laceration and muscle damage to his arm from the movement of the agitator.

The Office of Fair and Safe Work Queensland commenced an investigation into the incident and issued prohibition and improvement notices to the defendant. The defendant complied with the improvement notices and installed an interlocking system and fitted the hopper with a cut-off switch. These improvements would assist in preventing injuries from moving parts when the grate is open and the pump is operational. Further modifications were made to the pump including new signage, additional safety barriers, hand rails and a bar around the outside of the pump.

The defendant participated in a recorded interview and told investigators that at the time of the incident they were in the process of installing an interlocking switch. It was identified that this was to be done at their yearly safety meeting in May 2013. Some safety measures were implemented and further measures were to be implemented and as of 6 November 2013 this was a 'work in progress'. Also, prior to the incident the defendant had fabricated steel mesh safety guards and installed them around exposed moving parts to minimize the risk of injury to workers.

Court result

The defendant pleaded guilty to the charge in the Cairns Magistrates Court on 24 February 2015 and was sentenced by way of a fine in the sum of $2000, in default levy and distress. No conviction was recorded.

The defendant was charged with an offence under s. 208 of the Work Health and Safety Regulation 2011 in that they failed to manage risks to health and safety associated with unguarded plant.

During the giving of his decision, Magistrate Black noted that the employees involved were not following company policy. He took into account that the defendant was a family business and had operated for 36 years and currently employed 22 staff. He also noted that the defendant purchased the truck without the modifications to the hoppers.

In deciding the penalty, Magistrate Black acknowledged the need for deterrence, however took into account the defendant's mitigating factors and in particular the very early plea of guilty, that the defendant had not been previously prosecuted for any work health and safety breach, that they had cooperated with the investigation, and they were a good corporate citizen.

Considerations for prevention

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

When deciding on control measures to manage the risk of injury associated with plant, persons conducting a business or undertaking should refer to the Managing risks of plant in the workplace Code of Practice (PDF, 1.57 MB).

Where guarding is used to prevent workers being injured from moving parts, the risks associated with maintenance and repair of the plant should be considered:

• If plant or equipment is out of service due to maintenance or cleaning activities, ensure appropriate lockout and tag out processes are in place and have been communicated to staff.
• Isolate plant before maintenance and repair commences. Where a machine cannot be adequately guarded due to maintenance issues, consider decommissioning the plant until the necessary repairs have been made and the guarding replaced.

Details