Guillarte v Industrial Galvanizers Corporation - [2002] NSWIRComm 192 - NSWIRComm 1994 case summary — Zoe

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Guillarte v Industrial Galvanizers Corporation

[2002] NSWIRComm 192

Industrial Relations Commission (NSW)|1994-09-09|Before: Boland J, Peterson J, Hill J, Mr P

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Court

Industrial Relations Commission (NSW)

Decision date

1994-09-09

Before

Boland J, Peterson J, Hill J, Mr P

Catchwords

07/09/2002
07/11/2002 DATE OF JUDGMENT: 08/09/2002

Source

Original judgment source is linked above.

Catchwords

07/09/200207/11/2002 DATE OF JUDGMENT: 08/09/2002

Judgment (71 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Guillarte v Industrial Galvanizers Corporation [2002] NSWIRComm 192 PROSECUTOR Inspector Guillarte PARTIES : DEFENDANT Industrial Galvanizers Corporation Pty Ltd FILE NUMBER: IRC 4174 and 4175 of 2001 CORAM: Boland J CATCHWORDS : Occupational health and safety - Section 16(1) of the Occupational Health and Safety Act 1983 - Plea of not guilty - Galvanising plant - Use of electric overhead crane to transport structural steel beam - Risk to persons working on factory floor - Defence under s 53 of Occupational Health and Safety Act 1983 - Reasonably foreseeable - Offence proven LEGISLATION CITED : Evidence Act 1995 Occupational Health and Safety Act 1983 Bultitude v Grice Constructions Pty Limited [2002] NSWIRComm 20 Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Inspector Page v Woolworths Ltd (unreported, Peterson J, CT93/1044, 9 September 1994) Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 CASES CITED : Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 100 IR 182 WorkCover Authority of New South Wales (Insp Vierow) v Ridge Consolidated Pty Ltd [2002] NSWIRComm 11 WorkCover Authority of New South Wales (Insp Kelsey) v The University of Sydney (unreported, Hill J, 2 April 1997) HEARING DATES: 07/08/2002; 07/09/2002; 07/11/2002 DATE OF JUDGMENT: 08/09/2002

[39]

10 The defendant did not call any oral evidence. The defendant tendered a guide for electric overhead crane drivers issued by the WorkCover Authority in April 1992. Both parties tendered photographs of the scene of the accident and various plans and diagrams were also tendered. 11 As the name suggests, the factory at Girraween was a galvanising plant. The factory was approximately 93 metres long (running north-south), approximately 22.6 metres wide (running east-west) and had an internal height of about 10 metres. At the southern end of the building located on the eastern and western walls were two crane maintenance platforms approximately 1.8 metres wide. The distance between the ground and the underside of the platforms was approximately 6.5 metres. The distance between the platforms (measuring east to west) was approximately 16 metres. 12 There were four pendant controlled electric overhead cranes running in a north-south direction that were used to transport product to and from various treatment tanks located at various points in the factory. The overhead crane allegedly involved in the incident on 3 July 1999 was the crane located at the southern end of the factory. The distance from the floor to the underside of this crane was approximately 7.7 metres. The crane beam had two hooks for lifting and lowering that could be moved independently of each other in an east-west direction. 13 Near the southern wall at about the centre of the factory was a set of heavy-duty scales used for weighing product. The two scales each measured approximately 1.2 by 1.8 metres and the centreline (east-west) of the scales was at a point about 2 metres from the southern wall of the factory. Approximately 3.5 metres from the southwestern corner of the southern wall was the southern end of a jig stand that was fixed to the western wall. The jig stand consisted of a steel beam about 13 metres long supported by three steel posts 2.3 metres high, spaced about 6 metres apart. Approximately 6.2 metres to the east of the jig stand fixed to the western wall was another jig stand of the same dimensions. This jig stand was freestanding. The steel posts supporting the eastern jig stand were welded onto base plates, which in my opinion would have prevented the stand toppling over unless struck by a considerable force. After the alleged incident on 3 July 1999 the base plates were bolted to the floor of the factory. The area where the jig stands were located was known as the "dressing area". On the basis of the photographic evidence, and the evidence of various witnesses including Inspector Guillarte, Mr Cetin and Mr Bischof I have taken the dressing area to be that area depicted in the photograph numbered "1" in exhibit "A". 14 The purpose of the jig stands was to provide a structure upon which to rest jig beams. The jig beams weighed approximately 300 kg and straddled the two jig stands with end plates fitting over the edges of the jig stands having the effect, to some extent, of locking the jig beams and jig stands together. The jig beams were transported by the overhead crane by hooking into lifting lugs on the beams. The lifting lugs were 600-700 mm high. Hanging from the jig beams were product that had been galvanised. After the jig beams were placed on the jig stand the galvanised product was removed from the beams, dressed and stacked. 15 On 3 July 1999 Mr Iosefa and Mr Cetin were engaged in dressing and stacking the galvanised product in the dressing area. Also on that day Mr Bischof was engaged in moving large structural steel beams or girders from the northern end of the factory to the southern end for weighing. This involved using the overhead crane to lift and transport the girders over the top of the dressing area in order to position the girders so that they could be placed on the scales. Mr Bischof had carried out this operation successfully with one such girder under the supervision of Mr Aramini. Mr Aramini then left the area. Mr Bischof repeated the lift with a second structural steel girder. Before moving the steel girder over the dressing area Mr Bischof indicated to the workers in the dressing area to move to a position so that the girder did not pass overhead of the workers. The workers did so. After the girder passed over the dressing area Mr Cetin and Mr Iosefa moved back to the dressing area. It was alleged that whilst Mr Bischof was positioning the girder for weighing, it struck the eastern jig stand causing it to topple over. As it did so the jig beam resting on the jig stands crashed to the floor. Mr Cetin and Mr Iosefa were under the jig beam at the time. Mr Cetin managed to scramble to safety but Mt Iosefa was hit by the jig beam as it fell, causing him serious injury.

[65]

44 Mr Kite also referred to the judgment of Peterson J in WorkCover v Ridge Consolidated Pty Ltd [2002] NSWIRComm 11 at pars [26] to [28]: …I am satisfied on balance that the circumstances of this accident were not reasonably foreseeable, the aspect relied on by Mr. Corsaro and therefore it was not reasonably practicable to make provision in this regard. The truck was reversing slowly, over a long distance. Its reversing light and beeper were functioning. I would infer that the surrounding road noise impacted upon the ability of Messrs. Watson and Tseganis to hear the approach of the truck, not until it was within 7 to 10 metres distance. Nevertheless, there was sufficient time, upon Mr. Watson's warnings, for Mr. Tseganis to get out of its path yet this he failed to do. This could not be foreseen. The circumstances of the vehicle's reversing were unusual in the context of work of this type, because of the site layout, but not in the ordinary course of truck operations. One constantly sees large vehicles reversing on public streets, across public footpaths and in public places such as service stations and parking areas, and into loading bays. It is the light and beeper which are intended to give warning of the manoeuvre which enable this to occur. In the circumstances of this case it seems to me obvious that had a person been made available, as the charge contemplates, to guide the truck driver, this sad event would not have occurred. However, it is apposite to recall the words of Hill J. in WorkCover Authority (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR362 at 381. "If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of reasonable foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight." 27. I consider this is an accident which no reasonable person, considering the possibility of risk to workers such as Messrs. Watson and Tseganis, would have formed the opinion that a truck control person was necessary. The combination of the 'buddy' policy with the warning devices on the vehicle would be, in prospect, sufficient. 28. I find the defendant has made out a defence under s. 53; I find the defendant not guilty and dismiss the charge. 45 Mr Kite submitted that the risk constituting the offence in this matter was not reasonably foreseeable and, therefore, it was not reasonably practicable to take steps to avoid the risk. He contended that when one considers the complex chain of events constituting the risk, it was not easily explicable in hindsight let alone foreseeable. It was further contended that the system of work the subject of the charge had been in place for 19 years without incident.

[69]

49 In Bultitude v Grice Constructions Pty Limited [2002] NSWIRComm 20 the Full Bench considered the defence under s 53(a). At par [71] the Full Bench stated: 71 Walton J, Vice-President recently dealt with the s 53(a) defence in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182. After considering the decision of the High Court in Slivak v Lurgi (Aust) Pty Ltd (2001) 75 ALJR 481; 103 IR 52, his Honour held, at 206 - 207: [87] It is evident from these authorities that what is required by s 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (at 362). Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (at 259) and Austin Rover Ltd v Inspector of Factories (at 627) per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. [88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. We consider the above comments by his Honour correctly state the position as to this defence. 50 One simple remedial measure taken by the defendant following the incident was to bolt the eastern jig stand to the floor. Mr Dobson, an engineer, expressed the opinion that this measure would not have prevented the accident. However, Miller Milston and Ferris, consulting engineers, who provided a report to the defendant regarding the incident, stated: We inspected the area of the plant shown in Figure 1 on the 16th September and noted that since 3rd July the large steel plate assemblies at the base of the columns to frame 2 have been bolted into the concrete floor. The effect of this is to considerably reduce the possibility of a similar accident occurring again. 51 In any event, even if I were to accept Mr Dobson's opinion over that of the consulting engineers (which I do not) I consider that the defendant has failed to discharge the onus of showing that the costs, difficulty or trouble required to avoid or overcome the risks to safety in the workplace, outweighed those risks.

Guillarte v Industrial Galvanizers Corporation

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Judgment (71 paragraphs)

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Cases Cited (14)