Details of successful prosecution against E209751

Incident description

The defendant company pleaded guilty to an offence under s32 of the Work Health and Safety Act 2011 in that it failed to discharge its duty under s19(1). The defendant is a family owned company based in Townsville engaged in plastic fabrication, design and manufacturing of specialised products, including water tanks. The defendant also carried out repair and maintenance on tanks.

On 20 February 2015 an incident occurred at the workplace which led to the death of a worker engaged as a plastic fabricator. He was 24 years old.

Shortly prior to the incident, the deceased worker and his supervisor were repairing and moving a “polyethylene” cylindrical custom made tank encased in a metal frame. It was 6.1 meters long, 2.3 meters in diameter and weighed 3.1 tonnes.

The tank was lifted and moved using two forklifts, known as the “dual lift method”. This is a high risk task under the Work Health and Safety Regulation 2011. The method involved placing a square plastic outrigger pad (dunnage) under the tank to enable the other forklift's tines to fit under the end of the tank. The tank was being moved from the yard into the workshop. Entry to the workshop was by a ramp with an incline. When the tank was on the ramp, the deceased's supervisor had to briefly attend to other duties. At this time, the deceased was operating the forklift positioned on the ground and facing the lower end of the ramp. The other forklift was positioned at the higher end of the ramp. The deceased asked another worker to assist him and that worker commenced operating the forklift at the higher end of the ramp. Shortly after, the deceased asked the other worker to lift the tank slightly. At this time, the deceased was out of the sight of the other worker. It appears the deceased was adjusting the dunnage by crouching in an area between the forklift mast and the load. The tank moved towards the deceased and trapped his head between it and the mast. He died at the scene from fatal crush injuries.

Court result

The defendant indicated a plea of guilty at an early stage and was sentenced in the Townsville Magistrates Court on 7 February 2017 by Magistrate Smid who, in handing down sentence took into account the following mitigating factors:

• early plea of guilty and genuine remorse;
• extensive co-operation given to the Investigation and the deceased's family, including financial assistance;
• absence of prior convictions under the Act;

The Magistrate also found that the defendant was a relatively small, family company whose workforce and profits had declined since the incident. The Magistrate found that this reflected the economic environment in the Townsville area, particularly in industries the company serviced.

The Court also took into account that prior to this incident, the defendant had engaged with WHSQ to improve its practices and protocols which included forklift safety, however fell short on this occasion.

The Magistrate found there should have been a safer practice in place and the manner in which dunnage was used to lever the tank was not adequate. He accepted there were better ways of managing the exposure to risk and noted this job was typically done with a third person. On this occasion the defendant had fallen short of meeting its safety duties.

After the incident, the defendant changed and improved its work systems by developing a specific safe work method statement in relation to dual lifts, and conducting tool box talks with workers.

The pertinent circumstances, combined with the significant mitigating features in this matter saw the Magistrate convict and fine the defendant $120,000. A conviction was not recorded. Professional and court costs in the total sum of $1,589.40 were also awarded.

Considerations for prevention

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

When working in the manufacturing industry where there is exposure to risks from movement of a load using dual forklifts, 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:

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

Details