Details of successful prosecution against E201680

Incident description

The defendant company held duties under s.19 of the Work Health and Safety Act 2011 being a person conducting a business or undertaking. It operated a road transport and logistics service, with premises in two locations (one in Brisbane and one in regional Queensland). The work and staff predominately related to delivery of fuel to mining sites and regional towns. A lesser side of the business was haulage of general freight between Emerald and Brisbane.

The defendant employed approximately 7 workers at its Brisbane general freight depot. Most of the workers came from the same family and had a long history of employment with the business. On 9 July 2014 workers were loading and securing freight onto the rear trailer of a B double semi-trailer.

A forklift was used to assist with loading. On the tynes of the forklift was a homemade pallet cage being used as a temporary work platform. Neither the pallet nor cage were secured. One worker was standing on top of the loaded freight and moved onto the temporary work platform. It tipped laterally, causing him to fall in excess of 3 metres. He sustained injuries including rib, vertebrae and knee fractures.

There was an industrial engineered designed work platform on site, but it was rarely used. For over 20 years it had been usual practice when loading to use the method described above. There was no formal training and instruction in regards to packing and tarping loads. Nor were there any toolbox talks undertaken as to the system of loading trucks or of identifying hazards surrounding the task.

The defendant company was also charged with a failure to notify the regulator of the incident. Despite a workplace health and safety manager being employed and on staff at the time of the incident there were substantial delays in obtaining accurate information in regards to the incident. An anonymous tip led to the WHS investigation which resulted in the company formally notifying the regulator four months after the incident.

Court result

The defendant pleaded guilty in the Brisbane Magistrates Court on 22 March 2017 to breaching s.32 and s.38 of the Work Health and Safety Act 2011. Magistrate Andrew Walker fined the defendant $70,000 for the s.32 offence and $7500 for the s.38 offence, and ordered professional and court costs totaling $1685.80. The court made an order that no conviction be recorded.

In reaching a decision, the Magistrate took into account the defendant had previously made some attempts at preparing policies and procedures for its operations and the engagement of a safety manager. However the Court noted the focus of these measures appears to have been on the more lucrative fuel haulage side of the business. Magistrate Walker accepted the defendant had since put systems in place to prevent a repeat and had spent a considerable sum of money on improvements both by way of purchasing plant, improving written policies, procedures and training and the monitoring and auditing of same.

In deciding penalty, Magistrate Walker took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation once notification took place, and entered a relatively early plea of guilty.

Considerations for prevention

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

When working in the loading of freight industry where there is exposure to risks from fall from heights, 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 fall from height, obligation holders should consider the selection of suitable plant and or fall arrest systems together with adequate training and monitoring of workers use of same.

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

Details