Inspector Michael Dall v Bechtel Australia Pty Ltd [2003] NSWIRComm 349 (17 October 2003)

Last Updated: 27 October 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Michael Dall v Bechtel Australia Pty Ltd [2003] NSWIRComm 349

FILE NUMBER(S): IRC3228

HEARING DATE(S): 16/10/2003

DECISION DATE: 17/10/2003

PARTIES:

WorkCover Authority of New South Wales (Inspector Michael Dall)

Bechtel Australia Pty Ltd

JUDGMENT OF: Curtis AJ

LEGAL REPRESENTATIVES

PROSECUTION: Mr R Reitano of counsel

SOLICITORS: Phillips Fox

DEFENDANT: Mr B D Hodgkinson SC with Ms P E McDonald

SOLICITORS: Deacons

CASES CITED:

LEGISLATION CITED: Occupational Health and Safety Act 1983

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: CURTIS AJ

Date 17 October 2003

Matter No IRC 3228 of 2002

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR DALL) v BECHTEL AUSTRALIA PTY LTD

Prosecution under section 16(1) of the Occupational Health and Safety Act 1983

JUDGMENT

[2003] NSWIRComm 349

THE CHARGES AND THE FACTS

1 The defendant, Bechtel Australia Pty Ltd (Bechtel), has pleaded guilty to a charge under s16(1) of the Occupational Health and Safety Act 1983 (the Act), the charge against Bechtel in the amended application for order being that it “failed to ensure that persons not in its employment at the premises, in particular Andrew Norman Cosier, were not exposed to risks to their health or safety arising from the conduct of its undertaking while at its place of work, contrary to s16(1) of the Occupational Health and Safety Act 1983.”

2 The particulars of the charge against Bechtel are that it:

(a) failed to ensure a system of work that was safe and without risk to health for the unloading and transporting by forklift of two 12 m lengths of high density polyethylene pipe weighing about 692 kilograms from the vehicle to a load down area at the premises;

(b) failed to conduct an adequate risk assessment of the risks involved in the unloading process that was adequate to ensure that the process was carried out in a manner that was safe and without risk to health;

(c) failed to ensure that the pipes were adequately secured to the forklift truck during the unloading process;

(d) failed to provide adequate training, instruction, information and supervision to persons that were in its employment concerning the identification of hazards in the unloading process.

3 There is no dispute as to relevant facts. On 9 November 2000 Mr Cosier was in the process of delivering the pipes to the site. The pipes were lifted from the delivery vehicle by the forklift and transported to the storage area. While being moved, the pipes rested on the raised tines of the forklift but were not in any way secured to the tines of the forklift. No lines were used to secure the pipes to the forklift.

4 The dangers were obvious. The pipes were 12 m in length and the tines of the forklift were set a distance less than 2 m apart. The ground over which the forklift travelled was, in some respects, rough and uneven. There was a strong wind blowing. Mr Cosier, when he entered the site, received a written instruction to stay by his truck at all times. Acting as an observer in the unloading process, he stood adjacent to the driver's side headlights of the truck whilst the last two pipes were unloaded. After the pipes were elevated in order to remove them from the tray of the truck, they were lowered upon the tines to a distance of 1.82 m from the ground, passing over the position in which Mr Cosier stood. The pipes there fell upon Mr Cosier, pinning him to the ground. Although the pipes were removed and an ambulance called, Mr Cosier died as a result of his injuries while being taken to the hospital.

5 Bechtel concedes by its plea and the agreed statement of facts that there had been no risk assessment undertaken in relation to the unloading process. It also concedes the system it utilised (to the extent it is regarded as a system at all) was an unsafe one. It also admits the absence of training, supervision, instruction and information.

THE GRAVITY OF THE OFFENCE

6 The death of Mr Cosier is the most telling indication that this offence is to be viewed in the gravest terms. The danger was quite apparent. Given the limited separation of the tines of the forklift, the length and weight of the pipes, the uneven ground and the high winds, this was an accident which, rather than being a possibility, was a probability. Not only was it probable that at some time in the course of this process the pipes would fall, but because of the instruction that the driver remain by his truck, to my mind, it was a probability that death or serious injury would occur.

THE SIMPLICITY OF REMEDIAL STEPS

7 The risk associated with the work in question was one that could have been readily prevented by simple and straight-forward steps involving no cost.

8 The starting point must be that if any person had conducted a risk assessment of the unloading process, they would most certainly have turned their mind to the simple measure of ensuring that the driver of the delivery truck was told to stand away from the truck.

9 It has been suggested that another measure may have been that the pipes were secured by ties or otherwise to the forklift. Given the width of the 12m pipes, their weight, the uneven ground and the high winds, that to my mind would have created the distinct possibility that the forklift itself could have toppled.

10 A further suggestion was raised that a better course would have been the use of a mobile crane to unload the pipes but I accept the submission of Mr Hodgkinson, for the defendant, that such a course would itself involve different dangers.

11 In any event, the simplicity of the remedy, in combination with the grave dangers constituted by this system, tells heavily against the defendant.

GENERAL DETERRENCE

12 The site occupied by the defendant was a delivery compound used in relation to heavy engineering works. Throughout New South Wales there are countless such sites where loading activities occur involving heavy and awkward loads. It is in the interests of the community that a strong message be sent to the construction industry that risks as obvious as this must be avoided and that the penalty for any failure is not insignificant.

SPECIFIC DETERRENCE

13 The defendant is a huge corporation turning over some $11 billion each year worldwide. A modest fine would have little specific deterrence. However, for reasons to which I will later come, the defendant has an enviable occupational health and safety record of which it is justly proud. The very fact of conviction will operate as a specific deterrence to this corporation.

SUBJECTIVE FACTORS

14 Bechtel currently has approximately 42,000 employees working on 900 projects around the world in nearly 60 countries. The undertakings of the defendant have included the construction of the Hoover Dam in the United States in 1931, the construction of the Channel Tunnel between England and France between 1986 and 1994, and the construction of the Hong Kong Airport. The necessity for guarding the safety of so many persons in so many different places has not been lost upon the defendant and it has a strong institutional focus upon safety. It adopted in 1992 what it describes as a "zero accidents" philosophy on a group wide basis.

15 Pursuant to its "zero accidents" approach, Bechtel manages work place safety by implementing comprehensive project specific safety programmes. That is, in relation to each site, a safety programme is devised and written. Safety performance of each project is tracked, using a statistical reporting system so that management is aware of the frequency and severity of injuries in its business units. Bechtel employs worldwide 1,347 environmental safety and health employees.

16 All of this focus upon safety by system would be irrelevant were it not for the fact that it works. Bechtel’s global lost time rates compare most favourably with the United States industry experience. A table prepared and tendered to me indicates that the annual lost work day rate for Bechtel was 0.16 per 200,000 hours worked, compared to 3.7 for the United States heavy construction industry average.

17 Bechtel has a long history of working to improve safety and in 1930 was the first company to introduce a mandatory hard hat policy in the construction of the Hoover Dam. The company has worked in collaboration with other institutions to develop specific apparatus for the protection of workers, including a fall protection system that became a model. In 1995 Bechtel developed a hazard analysis programme known by the acronym STARRT. This programme affords employees a forum, importantly guided by standardized check cards, to discuss and address hazards before each task begins at each site.

18 One of the innovations of Bechtel is the publication of manuals of core processes, that is, manuals which identify specific tasks and list the rules and regulations and systems by which each task is to be safely performed. It is that systemic application of procedures which no doubt accounts in part for the record of Bechtel.

19 I note two important statistics. Over the last 50 years or so Bechtel has performed work on more than 250 projects in Australia concentrating on heavy construction – a notoriously dangerous activity. During that time it has never been prosecuted for an offence under any occupational health and safety act or related legislation.

20 In 2000 the company suffered 9 lost time injuries. This equates to a lost time injury frequency rate (LTI) per one million work hours of 2.2. In comparison, data from Worksafe Australia indicates lost time frequency injury rate for the whole of the construction industry in Australia of at least ten times that figure. The lost time injury frequency rate achieved by Bechtel in Australia on its projects from September 2002 to August 2003 was even lower again, being 0.6.

21 In relation to the present site, Bechtel did have a site safety plan pursuant to which the forklift driver, Mr Franks, was inducted. Mr Franks, in August 2000, having completed this induction course was tested as to his knowledge and appreciation of risks and upon that testing demonstrated his awareness that the load of forklift trucks should not pass over any person.

CONCLUSION

22 Bearing in mind the gravity of this offence, the simplicity of the remedy, aspects of general deterrence, specific deterrence, and the fact that the defendant within one week of the accident had devised and implemented a safe system, whereby drivers are assigned a safe place remote from their vehicles during unloading, and that the defendant co-operated with WorkCover Inspectors, and other subjective factors, I conclude that an appropriate fine in this matter is $133,000. I discount this figure by 25 percent because of the plea of guilty.

23 The defendant is convicted and fined $100,000. WorkCover is to have a moiety of the fine.

24 Costs are to be agreed between the parties or otherwise the parties have liberty to apply.

25 I express my gratitude for the assistance of counsel. Much of Mr Reitano's careful, moderate and useful submissions are embodied in this judgment. Mr Hodgkinson, in robust exchanges, persuaded me that what I had deprecated in the defendant’s corporate literature as “motherhood statements”, were appropriate exhortations to the company’s employees, couched in terms of appropriate abstraction.

LAST UPDATED: 22/10/2003