Inspector Michael Duncan v Brick & Block Company Pty Limited [2011] NSWIRComm 49 (21 April 2011)

Last Updated: 7 November 2011

This decision has been amended. Please see the end of the decision for a list of the amendments.

Industrial Relations Commission New South Wales

Case Title:	Inspector Michael Duncan v Brick & Block Company Pty Limited
Medium Neutral Citation:	[2011] NSWIRComm 49
Hearing Date(s):	7 February 2011
Decision Date:	21 April 2011
Jurisdiction:	Industrial Court of NSW
Before:	Backman J
Decision:	1. The offence under s 8(1) is proven and the defendant is convicted. 2. The defendant is fined $160,000 with a moiety to the prosecutor. 3. The defendant is to pay the reasonable costs of the prosecutor incurred in relation to both sets of proceedings in a sum as agreed or assessed.
Catchwords:	Ex parte proceedings - Occupational Health and Safety - s 8(1) of the Occupational Health and Safety Act 2000 - defendant in external administration - whether defendant an employer - whether employees at work - risk to safety particularised as a risk of being struck or crushed by concrete panels each weighing 2 tonnes being transported by a forklift truck - whether failure to provide and maintain a safe system of work - whether forklift was safe when properly used - whether defendant failed to provide adequate information, instruction, training and supervision for removal of the panels - offence proven Sentence proceedings - Occupational Health and Safety - s 8(1) of the Occupational Health and Safety Act 2000 - employee fatally injured after being struck by a concrete panel weighing 2 tonnes being transported by a forklift truck - forklift defective - forklift travelled over hazardous terrain - forklift driver unilaterally devised procedure for transporting the panels - procedure was patently unsafe - risk obvious and foreseeable - consequences of breach - simple remedial steps available - deterrence - maximum penalty - subjective factors - penalty - orders
Legislation Cited:	Occupational Health and Safety Act 2000
Cases Cited:	Ferguson v Nelmac Pty Limited (1999) 92 IR 188 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248
Texts Cited:
Category:	Principal judgment
Parties:	Inspector Michael Duncan (Prosecutor) Brick & Block Company Pty Limited (Defendant)
Representation
- Counsel:	Mr C Magee (Prosecutor) No appearance (Defendant)
- Solicitors:	Criminal Law Practice Legal Group WorkCover Authority of New South Wales (Prosecutor) No appearance (Defendant)
File number(s):	IRC 552 of 2010
Publication Restriction:

JUDGMENT

1. Brick & Block Company Pty Limited (the defendant) was charged with an offence under s 8(1) of the Occupational Health and Safety Act 2000 (OHS Act 2000). The charge alleges a failure by the defendant as an employer to ensure the health and safety of Robert McTackett, its employee, on 9 July 2008 at Lot 1, Foreshore Road, Port Kembla (the site).

Background

2. On 9 July 2008, at the site, Mr McTackett died after being crushed by an L-shaped concrete panel weighing approximately two tonnes. At the time of the incident, Mr McTackett had determined that a number of L-shaped concrete panels that lined the walls of the storage area at the site needed moving and re-aligning. He instructed Paul Davis, a fitter/maintenance supervisor at the site, to assist him to move the panels. After discussing various methods by which this task should be accomplished Mr McTackett left the area. A forklift had been left parked and unattended by another employee at the site. Mr Davis made a unilateral decision to utilise the machine to move the panels. He also had access to a loader which he used by positioning the bucket onto the concrete pavement behind an L-shaped panel to prevent the panel from moving. He then drove the forklift into the storage area and forced both tynes under the base of the L-shaped panel lifting it high enough to allow two lengths of timber to be placed underneath the panel. The tynes were then lowered to allow the weight of the panel to rest on the timber. Mr Davis then drove the forklift forward until the rear side of the panel was resting against the forklift's apron guard. The panel was then lifted off the timbers and Mr Davis reversed the forklift out of the storage area to an area behind the southern wall of the storage area where he stored the panel.

3. At about the same time, Mr McTackett returned to the area. He did not offer any comment to Mr Davis about the method he was employing to move the panels using the forklift. Instead, Mr McTackett assisted Mr Davis to move the next three panels utilising the work method devised by Mr Davis. While Mr Davis was in the process of moving the fourth panel, Mr McTackett walked over to the north-eastern corner of the storage area and commenced shovelling raw materials off the base of the western wall panels. He shovelled the raw material onto the concrete pavement, creating a small windrow (a row of compacted material) measuring about 55mm in height and 1 metre in width, which ran parallel to and in front of the north-western wall panels.

4. Meanwhile, Mr Davis was in the process of moving the fifth L-shaped panel. In order to reach it, he positioned the forklift so that it straddled the windrow. Once in position, he lifted the fifth panel using the same method employed to move the previous four panels. He was aware while undertaking the fifth lift that Mr McTackett was beside him on the left side of the forklift. Mr Davis reversed the forklift and turned the rear steer tyres in an easterly direction. Because the tyres crossed diagonally over the windrow and some loose raw material had accumulated between the tynes and the underside of the panel, the forklift rocked and the panel spun on the tynes of the forklift slipping off sideways and falling to the ground. Mr McTackett was struck by the panel and trapped underneath.

5. The defendant leased the site under an informal agreement with the site owner, Portland Property Holdings (NSW) Pty Limited (Portland). Portland and the defendant were related companies with common directors and shareholders. The defendant manufactured cement masonry blocks at the site for use in the residential and construction industries. It distributed its products under its registered trademark name of Alphalite.

6. The defendant has since been placed under external administration. The present proceedings were conducted as ex parte proceedings. The defendant did not enter a plea to the offence.

Elements of the offence

7. The elements of an offence under s 8(1) which the prosecution must prove beyond reasonable doubt are:

(a) the defendant was an employer;

(b) its employees were at work;

(c) the defendant failed to ensure the health safety and welfare of its employees (and by necessary implication placed its employees at risk to their safety).

First and second elements

8. Wage records which formed part of the prosecution brief reveal that at the time of the incident the defendant employed Mr McTackett as its Asset, Plant and OH&S Manager. Mr McTackett had about 20 years experience in the manufacturing industry. He reported to the defendant's Production Manager, Stephen McCormack. He also reported to the defendant's General Manager, Paul Beaupark, in relation to occupational health and safety matters.

9. The factual background introduced above indicates that Mr McTackett was at work at the defendant's site at the time of the incident.

10. The first and second elements therefore have been proved by the prosecution beyond reasonable doubt.

Third element

The risk to safety

11. The risk to safety to which Mr McTackett was exposed was particularised in the Application for Order (the charge) as follows:

(a) The risk to persons performing or assisting with the performance of the task of lifting and moving of solid pre-cast reinforced concrete "L-shaped" panels ('panels') at the Storage Area at the Site, of being struck or crushed by the panels, due to the panels falling off the forklift on which they were being transported.

Acts and omissions said to cause the risk to safety

12. The charge particularises a number of acts and omissions of the defendant alleged to have placed Mr McTackett at risk to his safety. These will be considered in the order in which they have been particularised in the charge.

Particular (b): Failure to provide and maintain a safe system of work

13. The charge alleges that the defendant failed to provide and maintain a safe system of work. This allegation is particularised in the charge in the following way:

(b) Brick & Block failed to provide and maintain a safe system of work in relation to the task of the movement of the panels in, or in the vicinity of, the Storage Area at the Site, in that it failed to undertake measures as follows:

(i) undertake a Hazard Risk Assessment and Control Worksheet to identify, assess and control the hazards associated with the task of moving the panels;

(ii) prepare a Safe Work Method Statement, setting out a safe method for the movement of the panels in light of the findings of the Hazard Risk Assessment;

(iii) determine the weight of the panels so as to be able to determine whether existing plant at the Site had sufficient lifting capacity to safely transport the panels;

(iv) determine the correct lifting capacity of the Powered Industrial Truck (Crown Forklift - Model No. CD20S-3, Serial No. KL-00397R) ("the Forklift");

(v) direct that the panels not be moved by a method that involved the panels being transported on the tynes of the Forklift;

(vi) direct that persons not perform work in the vicinity of the Storage Area whilst the task of moving the panels was being undertaken;

(vii) require that the task of moving the panels be undertaken using a mobile crane or similar plant with sufficient lifting capacity to safely transport the panels.

Particular (d)

14. The charge further alleges that the defendant failed to ensure that the forklift provided for use by its employees at work, and used by Mr Davis at the time of the incident, was safe and without risks to health when properly used. Measures which it is alleged the defendant failed to undertake are particularised in Particular (d) as follows:

(d) Brick & Block failed to ensure that plant, in particular, the Forklift, provided for use by the employees at work was safe and without risks to health when properly used, in that it failed to undertake measures as follows:

(i) ensure that the compliance plate on the forklift was able to be read, so as to enable the operator to determine the content of the indicators on the compliance plate, including its safe lifting capacity;

(ii) ensure that the forklift had sufficient lifting capacity to safely transport the static weight of the individual panels;

(iii) ensure that the forklift tynes were straight and not bent, to prevent the risk of the load slipping off the tynes.

Particulars (b) and (d): Evidence

15. There is substantial overlap in the evidence relevant to Particulars (b) and (d). It is convenient therefore to consider jointly the evidence relied upon by the prosecution to make out both Particulars.

16. Prior to the incident, the defendant had engaged an external consultant to complete an OH&S Management Plan. A draft plan was produced some two years later in February 2008. It included a section dealing with Hazard ID Assessment and Control. Risk assessment/hazard reporting forms SFO1, SFO2 and SFO4 formed part of that section. An external audit conducted of the Plan on 19 February 2008 revealed that the reporting forms were not being used. Mr Beaupark subsequently instructed Mr McTackett and Mr McCormack to review the safe work method statements section of the Plan (which would have incorporated a review of the use of the reporting forms). Due to the work commitments of both men, however, the review was not completed at the time of the incident.

17. A consequence of this was that the defendant did not undertake a risk assessment of the actual task performed for moving the L-shaped panels in the storage area at the time of the incident. Nor was there a pre-existing safe work method statement in place for the task of moving the panels in the storage area. The task was an unusual one, not regularly performed by the workers. The lack of a formalised risk or hazard assessment, however, meant that no consideration was given to the adequacy or appropriateness of the use of the forklift to undertake the task of transporting the unpalletised and unsecured load. An additional consequence was that neither Mr McTackett nor Mr Davis knew the weight of the L-shaped concrete panels and could not determine whether the load was within the safe lifting capacity of the forklift. Mr Davis thought that the forklift's capacity was 2,500 kilogrammes. It was, in fact, 1,670 kilogrammes.

18. Nor did Mr Davis complete any pre-checks on the forklift prior to utilising it to lift and move the panels. He was not, therefore, in a position to assess whether the forklift was operating properly or whether it had the appropriate capacity to undertake the task. Even if Mr Davis had undertaken pre-checks on the forklift, the compliance plate was in a state of disrepair. In particular, the painted indicators had been rubbed off the surface, which created a difficulty in interpreting the compliance plate with particular regard to its safe lifting capacity. In an interview, Mr Davis said that he could not interpret the compliance plate. The forklift, as earlier noted, had a lifting capacity of 1,670 kilogrammes, approximately 350 kilogrammes below the static weight of each individual L-shaped panel.

19. In addition to the state of the compliance plate, the tynes of the forklift were also defective because their tips were bent downwards and out of alignment. This state of affairs gave rise to an obvious risk of the load slipping off the tynes. The forklift was also unsuitable for the task undertaken by reason of the terrain over which it was required to transport the panels. The machine had solid tyres which were not suitable for travelling over the uneven surface which was covered by loose raw material likely to collect on the tynes during the lifting process. This also gave rise to a risk of the load shifting or falling off the tynes. Moreover, these factors were exacerbated by the decision to transport a load which was unpalletised and unsecured. Because of the defendant's failure to devise a safe system of work for the task, no consideration was given to the adequacy or appropriateness of the use of the forklift to undertake the task.

20. An obvious measure that should have been taken by the defendant, but was not, was to direct that persons not perform work in the vicinity of the storage area while the panels were being transported. Another obvious measure was to ensure that the forklift was in a satisfactorily safe condition to undertake the transport of the panels. An examination of the forklift may well have resulted in a decision not to use it for the task. In this regard, a number of engineering and associated safety controls could have been utilised by the defendant, for example, using a mobile crane or similar plant with sufficient lifting capacity to safely transport the panels. This measure would have dispensed with the need to use the forklift and consequently have avoided or reduced the risk of injury. After the incident, a crane was in fact utilised to lift the panels onto a truck.

21. As a direct result of the defendant's omissions to provide a safe system of work for the task of transporting the panels, and to ensure that the forklift was safe for its intended use, Mr McTackett, who was working in the vicinity of the storage area while the forklift was transporting the panels, was placed at risk to his safety.

22. Particulars (b) and (d) have accordingly been proved by the prosecution beyond reasonable doubt.

Particular (c)

23. The charge also alleges a failure by the defendant to provide adequate information, instruction and training to its employees in a safe system of work for the removal of the panels. The allegations are set out as follows:

(c) Brick & Block failed to provide adequate information, instruction and training to its employees on a safe system of work in relation to the movement of L-shaped concrete panels in, or in the vicinity of, the Storage Area at the Site, in that if failed to undertake measures as follows:

(i) ensure that its employees, and in particular Paul Davis, had been trained in the OH&S Management Plan ('Site Plan') and the need for and how to complete a Hazard Risk Assessment and Control Worksheet;

(ii) ensure that its employees, and in particular Paul Davis, had been trained in the need for and how to complete a Safe Work Method Statement.

Particular (c): Evidence

24. According to the evidence, Mr Davis had not seen the Plan before the incident and, in any event, could not read or write. He had not been trained in the requirements of the Plan, or the need for, or the method of completing, a Safe Work Method Statement, a Job Safety Analysis (JSA) or a documented risk assessment. Mr Davis was not trained in relation to the task he was undertaking at the time of the incident which fell outside his usual sphere of duties. According to Mr Davis, his moving of the first panel constituted a risk assessment of the task.

25. The conclusion is readily available from these facts and from the factual background introduced above that had the defendant ensured its employees, including Mr Davis, were trained in the Plan, in particular the rudiments of completing a Hazard Risk Assessment and Control Worksheet, and of completing a safe work method statement, an assessment of the risks would have been undertaken and identified and the risks reduced or even eliminated. Moreover, the system of work actually adopted by Mr Davis (and acquiesced in by Mr McTackett), which was fraught with obvious hazards, would not have been undertaken. Particular (c) therefore is proven by the prosecution beyond reasonable doubt.

Particular (e)

26. The charge also alleges that the defendant failed to ensure adequate supervision of employees working at the site while they were moving the L-shaped concrete panels, in that it failed to undertake measures as follows:

(i) ensure that Paul Davis was provided with direct supervision in respect to devising the method of work to move the panels in the storage area;

(ii) ensure that Paul Davis had a National Certificate of Competency for use of a Loader, or was being supervised under a logbook system, if he did hold such qualifications.

Particular (e): Evidence

27. The evidence reveals a number of deficiencies, both in the supervision of the particular task of moving the panels in the storage area, and supervision generally at the site.

28. There was a failure of supervision on the part of management of the defendant to ensure that a risk assessment or worksheet was completed for the task of moving the panels. There was also a failure to supervise on the part of the defendant in relation to adequately discussing the hazards involved in undertaking the task, for example, there was no discussion and therefore no explanation of the procedures required to be implemented prior to the commencement of work in the storage area. The facts disclosed that Mr Davis was left without direct supervision or assistance with the result that he devised his own method for moving the panels and acted accordingly. The absence of any supervision or assistance led to Mr Davis unilaterally forming the view that he should perform the task without conducting any real analysis as to how that task could be performed safely. It is abundantly evident that the procedure adopted by Mr Davis was patently unsafe and exposed Mr McTackett to a risk to his safety.

29. In addition, the defendant had a policy that only persons who were trained or otherwise authorised were permitted to operate plant and machinery. Any person who did not have a National Certificate of Competency (NCOC) or licence to operate plant was required to use a logbook system. Despite the policy, the evidence indicates that there was a culture among the defendant's employees of operating equipment while they were unlicensed and unsupervised. At the time of the incident, Mr Davis held a NCOC to operate a forklift, but he did not have a NCOC to operate a loader. It will be recalled from my earlier recitation of the facts that Mr Davis had access to a loader which he used by positioning the bucket onto the concrete pavement behind an L-shaped panel to prevent the panel from moving. Mr Davis was unsupervised while he operated the loader.

30. These facts, taken together, compel the conclusion that the defendant's omission to supervise Mr Davis while he was undertaking the task of moving the panels in the storage area gave rise to a risk that the panels would fall from the forklift and injure Mr McTackett who was standing in the near vicinity of the forklift.

31. Accordingly, Particular (c) has been proven by the prosecution beyond reasonable doubt.

Conclusion

32. Given my findings with regard to the elements of the offence, I find that the offence has been proven by the prosecution beyond reasonable doubt.

Sentence proceedings

33. In the event that the Court found the offence proven, the prosecution requested that the Court proceed forthwith to sentence the defendant. I propose to adopt that course.

The risk to Mr McTackett's safety was both obvious and foreseeable

34. The risk to safety particularised in the charge was that Mr McTackett, the employee who was assisting Mr Davis in the storage area at the site, was exposed to a risk of being crushed or struck by the panels falling off the forklift during transportation. This in fact occurred due to a number of factors but primarily, in my view, because of the defendant's omission to devise a safe procedure for the task and because of the defects in the forklift. Although the task undertaken by Mr Davis was not one which fell within the scope of his usual duties, he was able, without the benefit of any pre-conceived procedure, to devise his own procedure which was patently unsafe. Mr Davis was woefully ill-equipped to formulate any safe procedure while left to his own devices. This is apparent from one of his responses in an interview where he volunteered that his idea of a risk assessment for the task was moving the first panel (presumably to see what happened).

35. At the time of the offence the defendant was in the process of reviewing its occupational health and safety procedures, in particular those procedures involving hazard assessment and control and safe work method statements. The draft Plan had incorporated into it a number of forms including the Risk Assessment/Hazard Reporting forms. Regrettably, at the time of the offence, these reporting forms were not in use. There was therefore no formal procedure in place at the site for the assessment of risks. Nor was there any safe work method statement formulated for the task of moving the panels. The absence of these procedures gave rise to an obvious and foreseeable risk to Mr McTackett's safety. The storage area, as it presented at the time of the incident, was an entirely unsuitable area in which to operate a forklift. The ground was littered with loose raw material making the surface uneven and particularly dangerous for a forklift traversing the area. Mr McTackett, in an apparent effort to tidy up the area in order to facilitate the safe progress of the forklift, unwittingly formed some of the loose raw material into a windrow. It was when the forklift sought to traverse that windrow that it became unstable, and rocked, causing the panels to slip sideways off the tynes of the forklift. Added to these factors were the defects in the forklift, which apparently went unnoticed or undetected by the defendant at the time of the incident. The nature of the defects were such that Mr Davis was unaware that the load the machine was carrying was far in excess of its lifting capacity. The defective tynes exacerbated the risk of the panels falling off because their tips were bent, facing downwards, and out of alignment. The load itself was unpalletised and unsecured. These factors, in combination, conspired to make the accident almost an inevitability.

36. It is most unfortunate to observe in hindsight that had the defendant properly implemented its procedures before the incident that a risk assessment would have been conducted of the area and most, if not all, of the very obvious hazards would have become apparent and the risk avoided.

Consequences of the breach

37. The likelihood of Mr McTackett suffering fatal injuries is a compelling conclusion when the above factors, in combination, are taken into account. The absence of any formulated safety procedures, together with the hazardous nature of the terrain, the defective forklift and the patently unsafe method employed for transporting the panels placed Mr McTackett at a grave risk of being seriously, even fatally, injured by the panels in the event they slipped off the tynes. The consequences of the defendant's omissions presented a strong likelihood of serious, even fatal injuries to Mr McTackett which in fact, occurred. This finding elevates the objective seriousness of the offence into a high category.

Simple remedial steps were available

38. It is also relevant to an assessment of the objective seriousness of the offence that the defendant had available to it a number of simple, inexpensive steps that could have been taken by it to avoid the risk.

39. The defendant had in draft its Plan. It remained only to formulate and implement certain key parts of the Plan, including a system whereby the defendant took steps to ensure that the hazard identification forms were used by its employees, and the employees were properly trained in how and when to complete them. The audit conducted by an external auditor on 19 February 2008 of the Plan put the defendant firmly on notice that the forms were not used. This occurred some months before the incident so that the defendant had ample time to put in place appropriate measures, such as adequate training and instruction of its employees, in the use and completion of the forms.

40. It is of little, if any, relevance to an assessment of the objective seriousness of the offence that Mr Davis unilaterally adopted a procedure that was patently unsafe. The obligation upon the defendant to ensure the safety of its employees extends not just to those careful and observant employees, but equally to those employees who are hasty, careless, inadvertent, inattentive and even foolish: see WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257. Had Mr Davis been the recipient of a well-formulated, documented and properly implemented system of safety at the time of the incident, there is no doubt he would have followed it and the risk to Mr McTackett would have been avoided.

Systems of safety in place prior to the offence

41. Nevertheless, the defendant must receive some mitigation of penalty by reason of the systems of safety it was at least committed to providing its workforce at the time of the offence. It had formulated in draft its Plan no doubt with the best of intentions to secure the safety of its employees at work, as well as a safe workplace. Some months before the incident it had engaged an external consultant to audit its Plan. The results of the audit were presented to the defendant's Board by Mr Beaupark. The momentum from that point, however, seems to have dissipated, as the evidence has demonstrated.

Deterrence

42. The circumstances of the offence demonstrate the importance of formulating and implementing an appropriate safe system of work by all employers in the manufacturing industry and other related industries. The importance of doing this is underscored by the circumstance that the task being undertaken by Mr Davis was not part of his usual sphere of duties. This Court is aware of a number of incidents which have occurred when workers on industrial sites have been confronted with a task that falls outside of their usual duties and for which no formalised safety procedure has been implemented. It is imperative that employers have other procedures which are available to the workers to utilise in the event they undertake tasks which are not part of their usual or regular work. There are a number of statements in this jurisdiction which have sought to emphasise that an employer's obligation to ensure the safety of its workplace is not confined to reactive steps but includes proactive ones. One well-known statement to this effect is found in WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85 wherein Hill J identified a need for employers to:

"... exercise abundant caution, maintain constant vigilance and take all practical precautions to ensure safety in the workplace" and to "... be on the offensive to search for, detect and eliminate, so far as reasonably practical, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace."

43. A second well-known statement to similar effect is found in a judgment of Wright J, President, in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209-210 where his Honour said:

"... an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirements to "ensure ... health, safety and welfare at work" and the decided cases which make plain the nature of the obligation".

44. As for specific deterrence, I do not take it into account. The defendant is under external administration and, according to the prosecution, no longer operates the business or the plant at the site.

Maximum penalty

45. The defendant is not adversely recorded. It therefore faces a maximum penalty of $550,000.

Subjective factors

46. The absence of prior convictions entitles the defendant to leniency not otherwise available to offenders adversely recorded.

47. According to the prosecution, the defendant co-operated fully with the WorkCover Authority through its investigation.

48. These subjective factors will be taken into account in the defendant's favour.

Orders

49. The Court makes the following orders:

(1) The offence under s 8(1) is proven and the defendant is convicted.

(2) The defendant is fined $160,000 with a moiety to the prosecutor.

(3) The defendant is to pay the reasonable costs of the prosecutor incurred in relation to both sets of proceedings in a sum as agreed or assessed.

Amendments

28 Apr 2011 The date "9 July 2008" incorrectly recorded as" 9 June 2008" Paragraphs: 2