Work Health and Safety Act 2012

HEARING DATES: 19 November & written submission

DECISION OF: His Honour Deputy President Lieschke

Prosecution - Guilty plea - Failure to provide a safe work environment so far as was reasonably practicable - Failure to adequately separate forklift operations from pedestrians inside a workplace - Worker standing next to his stationary forklift was struck by a second reversing forklift, suffering a crushed pelvis, spinal, and internal injuries - Inadequate controls of the known hazard of forklifts hitting workers - No HIRA of forklift use was performed by the defendant until after the incident - Poor existing safety system was substantially improved after the offence - Held: Fine of $180,000 imposed after reduction of 40% - Conviction recorded

1. Ketheesan Amirthalingam suffered serious injuries from being crushed by a forklift while at work. The incident happened because the working environment did not adequately separate operating forklifts from pedestrians.
2. Following an investigation by SafeWork SA, the person conducting the business, Mitolo Group Pty Ltd (Mitolo), was prosecuted for a safety offence.
3. Mitolo has now pleaded guilty to the following charge:

The defendant, Mitolo Group Pty Ltd (ABN 61 076 302 925), on 30 May 2022, at Penfield Gardens in the State of South Australia, committed a Category 2 offence.

(a minor indictable offence against s 32 of the Work Health and Safety Act 2012)

• 1.1 The defendant had a health and safety duty.

• 1.1.1 At all material times, the defendant was a body corporate conducting a business of operating a potato processing facility at 405 Taylors Road Penfield Gardens SA 5121 (the workplace).

• 1.1.2 At all material times, the defendant engaged workers, including Ketheesan Amirthalingam (Amirthalingam).

• 1.1.3 The defendant had a health and safety duty prescribed by s 19(1)(a) of the Act to ensure, so far as reasonably practicable, the health and safety of workers it engaged while they were at work at the workplace.

• 1.2.1 While at the workplace, workers were exposed to a risk to their health and safety because:

• 1.2.1.1 Forklifts were frequently operated within the workplace to deliver potatoes and/or empty bins into an area referred to as 'the specials line' within the wet end area, where potatoes are washed for processing.

• 1.2.1.2 Forklifts were required to reverse, including within restricted spaces, to exit the wet end area once produce and/or empty bins had been off loaded.

• 1.2.1.3 It was possible that two Forklifts operated by separate worker(s) might enter 'the specials line' area at the same time.

• 1.2.1.4 It was possible that workers (who were also pedestrians) would move within and/or through the specials line area on foot.

• 1.2.1.5 It was possible for a Forklift to be operated and in motion while workers (who were also pedestrians) were present.

• 1.2.1.6 It was possible that a Forklift operator (Amirthalingam) may need to stop the Forklift due to possible maintenance issues and/or to check the Forklift.

• 1.2.1.7 It was possible for a second operator of a Forklift to fail to identify workers and/or movements of workers in their vicinity.

• 1.2.1.8 It was possible for a Forklift to strike a worker (Amirthalingam), including in the course of reversing.

• 1.2.1.9 It was possible for a worker to suffer severe crushing injuries or impact injuries as a result.

• 1.2.2 The defendant failed to provide and maintain, so far as reasonably practicable, a safe work environment because it:

• 1.2.2.1 Failed to ensure the specials line area had a designated safe stopping zone for Forklifts.

• 1.2.2.2 Failed to ensure that there were adequate processes and procedures in place for the management of workers and Forklifts entering and/or remaining in the specials line area. (for example, by designating areas as one [sic] Forklift zones and/or implementing safe minimum working distances)

• 1.3 The defendant's failure to comply with its health and safety duty exposed an individual to a risk of serious injury of death:

• 1.3.1 Arising from a worker being struck by a Forklift; and

• 1.3.2 Which risk materialised on 30 May 2022 when Amirthalingam suffered serious crushing injuries as a result of being struck by a reversing Forklift.

1. The maximum potential penalty is a fine of $1,500,000.
2. The following extensive facts were agreed.
   1. At the time of the incident, Mitolo Group Pty Ltd (ABN 61 076 302 925) (the Defendant) was responsible for work undertaken at its facility located at 405 Taylors Road Penfield Gardens SA 5121 (the workplace).
   2. The Defendant acquired the workplace as part of an acquisition from Thomas Foods International which was completed in around August 2020.
   3. At the relevant time, the Defendant's business at the workplace principally involved washing and packing of potatoes.
   4. At the relevant time, the Defendant engaged workers at the workplace.
   5. At the relevant time, the Defendant engaged Ketheesan Amirthalingam (Amirthalingam).
   6. Mr Amirthalingam had been working for the Defendant since 6 July 2021 as a forklift driver. Mr Amirthalingam held a High Risk Work Licence that allowed him to operate a forklift.
   7. Since the incident, the ultimate ownership of the Defendant company has been acquired by an external investor and as a result is now under different ownership and management structures to that as at the time of the incident.
   8. The Defendant continues to operate a business in South Australia that uses powered mobile plant (forklifts).
   9. At all material times, work being undertaken at the worksite included the use of forklifts.
   10. On 30 May 2022, both pedestrians and forklifts were operating in close proximity at the workplace.
   11. SafeWork SA's Managing the risks of plant in the workplace Code of Practice stipulates that: a person with management or control of powered mobile plant at a workplace must manage the risks to health and safety associated with plant colliding with any person or thing.
   12. Workers who operated forklifts at the workplace were required to hold an appropriate High Risk Work Licence.
   13. Workers were required to undertake induction training at the commencement of their employment and received regular training via toolbox talks.
   14. The Defendant's induction and onboarding process:
       • 14.1 included sign off against SOPs relevant to the workers role, including the Forklift Operating Rules and forklift induction and assessment as described below;
       • 14.2 required viewing of a forklift safety video prepared by an external provider, which included information on traffic management and pedestrian traffic, and pass a questionnaire assessment relating to the content of the video;
       • 14.3 included an onsite orientation with discussion of traffic management and the importance of pedestrians using the marked walkways, and making eye contact with forklift drivers.
   15. The Defendant had written safe operating procedures in relation to the use of forklifts.
   16. The Defendant had a Traffic Management Plan (the TFI Traffic Management Plan for Fresh Produce - Production Facility and TFI Safe Work Procedure 108 - Forklift Operations) in place that did not specifically address the risks of mobile plant colliding with pedestrians in the 'specials' area of its warehouse.
   17. The Traffic Management Plan did, however:
       • 17.1 identify traffic management issues including prevention of vehicle collisions or impacts and vehicle and pedestrian segregation;
       • 17.2 require workers to comply with traffic management controls and safety requirements at the workplace, look-out for vehicles and powered mobile plant, and observe and obey traffic management signs;
       • 17.3 require drivers of vehicles and powered mobile plant to comply with traffic management controls and safety requirements at the workplace, obey all workplace speed limits and signs and exhibit safe driving / operating behaviour, and to look out for and give way to pedestrians;
       • 17.4 refer to the traffic management controls in place at the workplace, including clearly marked footpaths and walkways to keep pedestrians and vehicles apart, vehicle parking located away from busy work areas, and reversing aids for vehicles and powered mobile plant;
       • 17.5 specify that pedestrians should use designated walkways;
       • 17.6 specify that workers were to receive training on topics including but not limited to traffic hazards, traffic risk controls, designated safe routes, parking areas, pedestrian exclusion zones and speed limits and pedestrian safety.
   18. Prior to the incident the subject of these proceedings there was an incident involving a forklift and pedestrian at the workplace:
       • 18.1 on 18 January 2022, a forklift driver was driving forward with a load in the loading dock area. A pedestrian worker was standing in the path of the forklift and was slightly pushed by the load before the driver of the forklift saw the pedestrian;
       • 18.2 no injury was caused;
       • 18.3 following this incident, the Defendant took steps to reiterate the pedestrian / forklift management rules at the workplace in its weekly toolbox talks including making eye contact and maintaining a minimum distance of 1.5 metres.
   19. The Defendant had no specific designated safe stopping zone for forklifts in the warehouse where pedestrians and forklifts were required to work.
   20. At the relevant time, although the Defendant had marked pedestrian walkways, the Defendant did not have in place specific safe minimum working distances for pedestrians and forklifts operating in close proximity. However, the Defendant did have forklift safety driver rules and procedures in place at the time of the incident which were communicated to workers in weekly toolbox safety talks which included:
       • 20.1 that workers be aware of their surroundings and to ensure the safety of themselves and others;
       • 20.2 for workers to look and assess prior to operating the forklift whether it is safe to proceed in what they are doing or where they are going;
       • 20.3 for forklift drivers to:
         • 20.3.1 make eye contact before moving within 3 metres of personnel. During COVID-19 this was reduced to 1.5 metres (which change was reiterated in the weekly toolbox safety talks);
         • 20.3.2 turn and look before reversing;
         • 20.3.3 limit speed to 5 kilometres per hour or less at the workplace;
         • 20.3.4 reduce speed when near people, turning or reversing;
         • 20.3.5 ensure no collisions occur with people, structures or other vehicles;
       • 20.4 pedestrians:
         • 20.4.1 to use designated pedestrian walkways;
         • 20.4.2 if departing from designated walkways, make and maintain eye contact with any forklift drivers in the area;
         • 20.4.3 not to stand in shared traffic zones or forklift zones.
   21. On 30 May 2022, at approximately 6:30am, Mr Gary Hoffrichter and Mr Amirthalingam were performing their respective roles as forklift operators at the worksite. Both workers had commenced their shifts approximately 45 minutes prior.
   22. Mr Hoffrichter was engaged by the Defendant as a forklift operator and had been working for the Defendant since 17 August 2021. Mr Hoffrichter held a High Risk Work Licence that allowed him to operate a forklift.
   23. At the relevant time, there was rainfall outside the warehouse area of the worksite, the inside concrete floor of the warehouse area was dry.
   24. Mr Hoffrichter was operating a forklift VN 328F618 leased to the Defendant by Toyota Handling Australia Pty Ltd.
   25. Mr Amirthalingam was operating forklift registration S80SXV which was owned by the Defendant.
   26. At the relevant time there were pedestrians and forklifts present within the 'specials' area.
   27. At about 6:38am, Mr Hoffrichter was transporting an empty potato bin on the forklift's tines to an area within the warehouse known as the 'specials' area. This is the area of the warehouse where potatoes are washed. Mr Amirthalingam was behind Mr Hoffrichter in the forklift he was operating.
   28. Mr Hoffrichter began offloading the empty potato bin next to the conveyor belt in the specials handling area.
   29. Mr Amirthalingam had stopped his forklift in the 'specials' area and next to a marked designated pedestrian walkway (walkway on the left of the forklift). Mr Amirthalingam's forklift was parked to the back left hand side of Mr Hoffrichter. Mr Amirthalingam disembarked from his forklift to the right-hand side of the forklift and moved to its rear to collect his gloves.
   30. Mr Hoffrichter began to reverse his forklift, which collided with Mr Amirthalingam at the rear of his forklift, pinning Mr Amirthalingam between the two forklifts.
   31. Mr Hoffrichter then drove forward slightly which allowed Mr Amirthalingam to be released.
   32. Pre-Pack Team Leader, Mr Sukhdail Singh called triple zero and rendered assistance to Mr Amirthalingam whilst waiting for an ambulance to arrive.
   33. Mr Amirthalingam was transported to the Royal Adelaide Hospital where he underwent multiple surgeries for his injuries and remained in Hospital for approximately 2 weeks.
   34. The crush injury caused Mr Amirthalingam to experience multiple fractures to his pelvis and spine. Mr Amirthalingam is still recovering from his injuries; however, he is not expected to make a full recovery from his injuries.
   35. Mr Hoffrichter was taken to Corporate Health Group located in Elizabeth to undergo a mental health assessment and drug and alcohol test. The drug and alcohol test returned a negative result.
   36. The incident was reported shortly after by Work Health Safety Manager, Ms Kirsty Stuart.
   37. The incident was captured on Close Circuit Television.
   38. At part of the investigation, SafeWork SA engaged Mr Eliot McDonald of Eliot's Automotive Services to provide a report into the two forklifts involved in the incident.
   39. Mr McDonald was of the opinion that the two forklifts were functional at the time of his examination and no mechanical faults were identified.
   40. After the incident, SafeWork SA issued compliance notices to the Defendant, including:
       • 40.1 Prohibition Notice WHSPN 311006 issued on 30 May 2022, prohibiting the use of forklift registration S80SXV, until inspected by a competent person,
       • 40.2 Prohibition Notice WHSPN 311007 issued on 30 May 2022 prohibiting the use of forklift VN 328F618, until inspected by a competent person,
       • 40.3 Improvement Notice WHSIN 217557 issued on 1 June 2022, recommending the Defendant review the traffic management procedure for mobile plant and pedestrians working in close proximity, and
       • 40.4 Improvement Notice WHSIN 217588 issued on 1 June 2022, recommending the Defendant implement a process to ensure pre-start checks for forklift registration S80SXV are carried out.
   41. By 11 July 2022, the Defendant had complied with WHSPN 311006 and WHSPN 311007 and the notices were lifted.
   42. By 13 July 2022, the Defendant had complied with WHSIN 217557 and WHSIN 217588.
   43. The Defendant also received and fully complied with six non-disturbance notices and eight notices to produce throughout the course of SafeWork SA's investigation.
   44. Since the incident the Defendant has made the following improvements:
       • 44.1 updated the Traffic Management Plan to include a safe stopping procedure (including a safe zone and break down procedure);
       • 44.2 updated forklifts to include blue light distance which turns on when reversing and progressively updating to also include a 1.5m redlight curtain around each forklift which is always visible;
       • 44.3 revised and re-trained workers in respect of its routine pre-operational checklist for completion prior to using any forklift; and
       • 44.4 installed elevated pedestrian walkway, additional signage, elevated work platform, bollards and safety railing including Armco railing within the workplace.
3. CCTV vision of the incident, a book of documents with additional circumstances, a Victim Impact Statement, and an affidavit of the defendant's Managing Director Frank Mitolo have been tendered.
4. The CCTV shows Mr Amirthalungam stationary before Mr Hoffrichter starting to reverse. Within a second, Mr Hoffrichter starts to reverse in a straight line, but not towards Mr Amirthalungam. Mr Amirthalungam looks towards the other forklift as he alights, then turns his head to the forklift he is still standing next to. Mr Hoffrichter's forklift continues reversing in a straight line for a short distance, but then turns in an arc towards the victim's forklift, as if pivoting to change direction. Mr Hoffrichter's forklift had turned about ninety degrees by the time he struck the victim, about 4 seconds after starting. If the victim had not been standing where he was, Mr Hoffrichter's forklift would have struck the rear right side of his forklift.
5. While the distance Mr Hoffrichter reversed before striking the victim was not recorded, it appears to be equal to two or three lengths of his forklift. His speed of reversing appears to be slightly faster than the walking speed of the workers recorded by the CCTV.
6. In the three minutes before the incident, five workers are seen walking in, or through, the specials area outside of walkways. Some are wearing hooded hi-vis jackets, with restricted peripheral vision. One worker is seen walking close by a reversing forklift.
7. Two faded yellow lines on the ground along a side of the specials area mark a walkway.
8. Mr Amirthalungam got off his forklift to change his gloves, as they had just got wet from changing a gas cylinder on another forklift outside in the rain. He intended to continue his forklift duties with dry gloves.
9. Mr Amirthalingam underwent an induction with Mitolo when he started work with them. This involved watching a video, answering a questionnaire about it, and having a site orientation, but no training as such. He understood he could drive a forklift anywhere required. It was fast paced work. He felt little importance was placed on safety, but this changed after the incident. For example, previously there was no safety officer or safety committee, and forklifts struck objects on multiple occasions.
10. Mr Hoffrichter gave an account of his driving actions that are not consistent with the CCTV vision. He said Mr Amirthalungam approached him from behind on a forklift after he had commenced reversing. That is why he did not see him or his forklift. However, the CCTV clearly shows Mr Amirthalungam driving into the specials area directly behind Mr Hoffrichter, and that Mr Amirthalungam had stopped before Mr Hoffrichter started reversing.
11. The direct victim of the offence, Mr Amirthalungam, has prepared a Victim Impact Statement. He explains the devastating consequences of being struck and crushed at work. He is a young man who arrived in Australia as a refugee in 2012. He worked hard for 10 years until the incident. He remains on a bridging visa and has no entitlement to Medicare or social security.
12. Mr Amirthalungam describes the loss of his active and satisfying life from before the incident, and the despairing existence he now has. He is now always in terrible pain. He is depressed, isolated, and unable to work. He struggles with poor physical and mental health. He needs an aid to help with walking. He accesses regular physical and psychological treatment. He also struggles financially.
13. Mr Amirthalungam states that he has "some other injuries that are too hard to talk about", which have had a very negative effect on his daily life. That is consistent with the RAH discharge summary which describes internal injuries. Mr Amirthalungam has made several attempts on his life since the incident.
14. Mr Amirthalingam has been in receipt of workers compensation income and medical treatment support since the incident. The expenses paid by the Return to Work Corporation for the consequences of Mitolo's offence were over $420,000 up to the sentencing hearing.
15. With Mitolo's full support, he has been accepted as a 'seriously injured' worker on an interim basis under s 21(3) of the Return to Work Act 2014, meaning he continues to receive 80% of his income and treatment expenses. Mr Amirthalingam's level of permanent impairment has not yet been assessed. His future rights to income support and treatment will depend on being assessed as having at least 35% Whole Person Impairment under the RTW Act. If less than 35%, all support ends.
16. Mitolo operated eight forklifts at the Taylor's Road facility at the relevant time. It operates other forklifts elsewhere. It describes itself as a large employer.
17. Mitolo's Managing Director offers a statement of regret for the injuries suffered by the victim of its offence, Mr Amirthalingam. He admits Mitolo's safety procedures and controls were insufficient to prevent the victim's serious injuries.
18. Mitolo provided a high level of personal support to Mr Amirthalingam during his hospitalisation and afterwards. It engaged an immigration agent to help Mr Amirthalingam arrange for his mother to visit him from Sri Lanka while he was in crisis; but this was refused by the authorities. Mitolo complied with its return-to-work obligations.
19. The two relevant safety procedures in place when Mitolo acquired the business were a Traffic Management Plan and a Forklift Operations safe work procedure. Mitolo had its own Forklift SOP, which I understand replaced the existing policy.
20. Mitolo considered the causes of the incident and possible corrective action that could be implemented straight away. Some changes were introduced the following day, with new rules for the specials area and forklift use implemented by 1 June 2022.
21. A Mitolo employee carried out a form of written hazard identification and risk assessment (HIRA) of forklift operations on about 6 June 2022. This identified additional hazard controls that were reasonably practicable to implement. The HIRA took into account the need to safely manage about 200 forklift movements per hour, or an average of one every 20 seconds.
22. Mitolo's additional hazard controls recognised the need for a designated safe stopping zone for forklift drivers, as they become vulnerable pedestrians as soon as they alight. This zone was marked out near the battery area. An emergency safe stopping procedure of getting the attention of any other mobile plant operator in the vicinity before alighting was also implemented.
23. Mitolo recognised the hazards of two forklifts operating in the specials area at the same time, and so allowed only one in that area from then on.
24. Mitolo implemented a new rule that an operator must turn their head and look for three seconds before reversing, in recognition of the additional risks of travelling in reverse.
25. Mitolo implemented a new rule that a forklift could not come closer than 1.5 m to a pedestrian, and that if they did, the pedestrian had to move away.
26. Mitolo recognised the need for a speed limit lower than 10 kph, and the importance of the practical implementation and enforcement of its new traffic rules. It reduced the maximum forklift speed to 5 kph, posted signs to this effect and appointed traffic marshals, but did not introduce any speed checking or detection devices.
27. Significant steps were taken to separate forklifts from pedestrians. A visual warning of bollards and chain/tape was introduced to the specials area for use when forklifts collect assembled pallets. Fixed railings and elevated pedestrian platforms were introduced to protect workers where forklifts were required to approach workstations. Fencing was installed in some areas to prevent loads falling on workers in the event of forklift mishaps. Convex mirrors were installed at blind corners. Drivers were required to alight on the left side only. Layout changes were made to segregate tasks with no, or little, forklift use from areas of high forklift traffic. Forklift operators were retrained in the new procedures. Mitolo introduced similar hazard controls at its separate washing and packing facility. It spent about $500,000 on its various improvements.
28. An additional visual warning in the form of a blue-light that comes on for reversing was fitted to all forklifts at some point. An additional red-light warning 'curtain' is being progressively fitted to all forklifts.
29. To help with maintaining its new traffic management system, Mitolo has established a Forklift Focus Group. This meets regularly to review its effectiveness. Examples of reports of three forklift mishaps that were received soon after the incident on 6, 7, and 8 June 2022 were produced to indicate the genuine attempts made at achieving the safest work environment that is reasonably practicable.
30. Mitolo is trialling an additional control of illuminated ground walkways. It is investigating implementing available forklift proximity sensors with warning devices for reversing forklifts.
31. Mitolo has recently engaged an external workplace traffic management safety expert to review its current traffic and forklift safety policies.

1. The offending is objectively very serious. A penalty towards the higher end of the scale for this type of offence is warranted.
2. Mitolo's failings created a serious risk of injury that was not controlled despite its foreseeability. Forklift safety in the specials area was effectively unmanaged.
3. While some hazard controls were in place, they were inadequate. They did not address two forklifts operating in the small specials area at the same time, did not allow for a designated safe stopping zone or safe stopping procedure for forklifts, and did not require a separation distance from, or exclusion zone, around forklifts. The cost of these hazard controls was negligible.
4. The poor state of hazard controls resulted from an inadequate hazard identification, risk assessment and determination of the safest reasonably practicable hazard controls. Nor was the hierarchy of controls applied.

1. Mitolo characterises its offending as not providing adequate traffic management or a safe stopping zone for forklifts in the specials area.
2. Mitolo refutes the submission that safety in the specials area was unmanaged. It points to its existing forklift and traffic management policies.
3. Mitolo describes its failings as a 'gap' in its safety system, and further suggests that they were analogous to a 'blind spot'.[1] It implies its existing system was of a high standard by submitting that "even the best safety systems" can be challenged by the manifestation of some risks.[2]
4. Mitolo submits a low need for specific deterrence based on the range of new hazard control measures implemented over time since the offence.

1. I accept the agreed facts, as well as the additional facts summarised above. Observations about two agreed facts are required.
2. The reference at paragraph 14.1 to the victim's induction including a "sign off against SOPs" needs clarification. Here it means no more than he signed his name to indicate he thought he understood what they had seen, been told, and read, at the single induction session. A 'sign off' is not a substitute for training (which the policy said he would receive) and cannot shift responsibility for providing a safe system of work, and a safe working environment to a worker.
3. The agreed fact at paragraph 18.3 states that after the incident, Mitolo "took steps" to reiterate its existing policy. I accept the system of weekly documented toolbox talks was then introduced. The topics included forklift collisions and reminders of aspects of the existing policies, as well as reminders for workers to assess and avoid risks to their own safety. In February 2022, there was discussion of a new incident of a forklift reversing into a lift door, and in March 2022, a new incident of a forklift hitting a loading door was discussed.
4. Significantly however, Mitolo did not respond by conducting or arranging a HIRA of forklift use. It proceeded on the assumption that its existing hazard controls eliminated or reduced risks of harm from collisions to the greatest extent that was reasonably practicable. These were all missed opportunities for Mitolo to review and remedy an unsafe work environment with the known hazard of forklift collisions still occurring.
5. There is no evidence that Mitolo obtained a written HIRA from the business' vendor at acquisition, nor did it conduct its own written HIRA at any time before the incident. A workplace traffic management safety expert was not engaged to conduct a HIRA, or review existing policies, until prior to the sentencing hearing. A structured written HIRA is likely to identify optimal reasonably practical hazard controls, without possible compromise from production or performance goals.
6. Mitolo had taken some disciplinary action in the form of warnings for employees not using walkways, but at a rate of one per year. There is no evidence of any other enforcement activity by Mitolo until after the incident when traffic marshals were appointed.
7. In any event, the faded walkway to the left of Mr Amirthalingam's forklift was a possible, but not obvious, alighting place for him. He was not allowed to park on or block a walkway. His spare gloves were on the right side of the forklift, and he had seen Mr Hoffrichter start to reverse in a direction away from him before alighting. Further, the policy for use of walkways was directed to pedestrians walking somewhere, whereas Mr Amirthalingam was attending to his forklift and had not walked anywhere before being struck.
8. I agree with Mitolo that its safety obligations in the specials area were not 'unmanaged'. Rather, they were managed, just very poorly. The existing work environment required use of reversing forklifts around pedestrians, including dismounted drivers. Safety measures to control the known hazard of dangerous forklift collisions were primarily weak administrative policies, that relied on individual busy workers and were seldom enforced in practice.
9. I disagree with Mitolo's description of its pre-existing safety system. It did not just have a 'gap'. It had multiple gaps resulting from Mitolo's failure to properly identify, assess and control all the known and foreseeable hazards of forklifts colliding with people inside its premises.
10. Mitolo's offence resulted in unsafe traffic management in the specials area. This resulted from Mitolo's serious failure to ensure the safety of its employees so far as was reasonably practicable. It failed to do so because it did not identify and implement all the reasonably practicable safety measures that were available, many of which were later implemented.
11. Any PCBU that daily uses eight forklifts around pedestrians in one facility, and which does not conduct a HIRA or access expert traffic management safety advice, is plainly risking sub-optimal hazard controls and resulting serious injuries.
12. The hazard of a forklift collision with a person created a real risk of serious permanent injury, and potentially of death. The risk of serious life-long impairment and incapacity was regrettably realised when Mr Amirthalingam was struck and crushed.
13. I accept that Mitolo responded compassionately to Mr Amirthalingam, through its communications and various forms of support provided.
14. I accept Mitolo promptly reviewed and improved its traffic management system immediately, and in the weeks after the incident. The hazard control measures were certainly significantly improved, with the major controls being inexpensive and easy to implement. Engineered controls in the form of removing the second forklift from the specials area, and physical barriers were implemented.
15. The internal HIRA was a good step, although conducted without expert input. If suitable expertise had been accessed, Mitolo would likely have been advised about the existence of available sensor, warning and camera technology that it is now exploring or implementing. The current external review is a welcome step.
16. I accept Mitolo has fully co-operated with SafeWork SA.
17. I accept Mitolo has no prior safety offences.
18. Regarding specific deterrence, it is difficult to assess the adequacy of the current controls without the benefit of a written hazard identification and risk assessment prepared by a workplace traffic management expert. That is yet to happen. In making this point, I do accept that Mitolo did conduct an assessment very soon after the incident, and that it has implemented a range of controls directed at substantially reducing a range of risks of collisions with pedestrians. I accept that at some later point, it found out about available forklift sensor and warning technology and decided to implement some of that. However, compliance is not a matter of making a reasonable attempt at improving safety over time. It is achieved only by ensuring, before work starts, that all expertly foreseeable risks of injury are eliminated, or if that is not reasonably practicable, reduced to the greatest extent that is reasonably practicable
19. Subject to this reservation about the pending expert review, I consider Mitolo has very good prospects of future compliance if it continues to review its policies, and if it actively maintains and enforces at least the current implemented and planned hazard controls. As is the case for many systems of work and work environments, the movement of bulk goods with multiple forklift operators is a dynamic process that requires close attention to ensure safety policies remain effective and are observed in practice over time. I consider there remains a need for an element of specific deterrence in the penalty.
20. The penalty for a significant safety offence needs to serve as a general deterrent to other safety duty holders. Several of Mitolo's failures regularly feature in safety offences. They include: the prevalence of traffic injuries inside workplaces; failures to conduct adequate HIRA's and to apply engineering controls according to the mandated hierarchy of controls where reasonably practicable; and a misplaced reliance on policies without active maintenance and enforcement in practice.
21. I have considered the previous sentencing decisions cited by both parties. Those decisions made under the previous Act, with a lower penalty regime, are not helpful. The others offer some limited guidance, noting each has unique facts.
22. A reduction in penalty of up to 40% is available based on Mitolo's guilty plea. I consider the full reduction is appropriate given Mitolo's full acceptance of responsibility and demonstrated contrition.
23. I agree with the Informant that the circumstances call for a penalty towards the higher end of the scale for safety crimes of this type. Mitolo's failings amount to a very serious safety offence involving a known risk of extremely serious injuries, and a possibility of death. The materialised risk caused devastating enduring injuries, with life-long consequences, to a young employee. The injuries were easily preventable.
24. I have taken into account the very positive manner in which Mitolo responded to Mr Amirthalungam. I have also taken account of Mitolo's prompt actions to implement new rules to separate forklifts and pedestrians in the specials area, and its other subsequent safety improvements.
25. I consider that a starting point of a fine of $300,000, or 20% of the maximum, is most appropriate. After application of the maximum reduction, I impose a fine of $180,000.
26. I record a conviction for the offence by Mitolo.
27. I also order Mitolo to pay a Victims of Crime Levy of $424 and a contribution to the prosecutor's legal costs of $3,410.

[1] Defendant's written submissions [24]

[2] Defendant's written submissions [15]