Inspector Ching v Bros Bins Systems Pty Ltd [2009] NSWIRComm 154 | Case summary

The evidence 16 Mr Reitano tendered statements of evidence and extensive documentation produced in connection with the investigation of the incident conducted by Inspector Ching and Inspector Jose Barbosa. This included statements taken from Mr Joshua Turnbull, the sole director of the defendant; Mr Clifford Boulton, a director of Tibby Rose; Mr Robert Vladimir Vrbanc, a tradesman employed by Tibby Rose; Mr Darryn Troy Targett, an auto electrician employed by Tibby Rose and Detective Senior Constable Grant Henville, a qualified automotive mechanic attached to the Engineering Investigation Section of the NSW Police. Parts of this evidence were more relevant to a charge brought pursuant to s 15(1) of the Act against Tibby Rose, which was heard together with this matter. Inspector Ching also completed a factual inspection report and took a number of photographs of the vehicle. Photographs were also taken by Inspector Barbosa and Senior Constable Clint Nicol. Improvement notices following the incident were also tendered, together with a document titled "WorkCover Code of Practice, Waste Management and Recycling". 17 A factual inspection report dated 16 February 2000, and prepared by Inspector Ching and Inspector David Shoobert, described the truck and, in particular, the control switches and levers observed within the cabin of the vehicle as follows: ... 1. The power take off engagement or disengagement lever located on the dashboard. The identifying inscription displayed "PTO IN OUT" from top to bottom of the lever stroke. 2. The tilt tipping mid section mechanism hooks engagement lever located on the dashboard was incorrectly identified as "HOIST RAISE, HOLD, SLOW, FAST AND LOWER" from top to bottom of the lever stroke. This control lever had no safety device fitted to prevent the lever being inadvertently bumped and activated. 3. Hanging from a recess in the dashboard was some electrical wirings and components located adjacent to the power take off "PTO" and hoist control lever on the lower dashboard. 4. The dead man lever located between the front seats (closer to the driver seat) was for the hoist raise and lower. There were no identifying labels indicating its functions. 5. The dead man lever located between the front seats (furthest from the driver seat) was for telescopic jib operation. There was no identifying labels indicating its functions. F. Three control levers located on the driver's side of the vehicle adjacent to the hydraulic oil tank. The outside lever operated the hoist. The middle lever operated the jib telescopic motion. The inner lever was a spare. There were no identifying labels indicating their functions. 18 According to the evidence of Inspector Barbosa, the following was the mechanism to lift the bin: there was a mechanism used to lift and dump waste bins, comprising of a hook attached to the end of a mast/jib of steel and a rear-lifter/swivel balance. This mechanism was activated by a double-acting hydraulic ram allowing the mechanism to perform the rising, lowering and dumping operation of the waste bins. The rear lifter/swivel balance comprising of a massive piece of steel and two hooks, one to each end, which were to be connected to the pins attached to the main mast/jib. Inside the truck's cabin, next to the steering wheel column, was a mechanism known as the PTO switch (power take off switch) with two levers subsequently connected to the hydraulic valve/switch system. 19 It is appropriate to commence the consideration of the evidence by referring to the evidence of Mr Turnbull, both in his statement made to Inspector Ching on 12 April 2000, and in oral evidence in these proceedings. In his statement to Inspector Ching, Mr Turnbull stated that there was no mechanism available to prevent the pneumatically operated hooks from disengaging in case of pneumatic failure. When asked why a safety prop was not used when a person was working under the raised portion of the truck, his answer was that "it wasn't there". Mr Boulton, in dealing with the same issue of what safety procedures were in place for employees working under the elevated section of the pneumatic hook, stated: "none, we rely on the knowledge of the operator in relation to the safety features on the system." 20 Furthermore, Mr Boulton stated that no instructions were given to Mr Whitehouse prior to him working under the elevated portion of the pneumatic hook lift. Both Mr Turnbull and Mr Boulton acknowledged the existence of props, or other similar mechanisms, being used in respect of other vehicles. Inspector Shoobert's evidence was that after the incident and the issuing of an improvement notice, a safety prop was installed on the truck. 21 The evidence disclosed that the mast or jib comprised two sections. The portion closest to the rear of the truck was attached to the chassis by rollers, which enabled it to be raised and lowered. This was called the mid section and it could be attached to a section of the mast which was near the cabin of the truck by means of hooks which attached to that extended section over a stub. The hooks were operated by a pneumatic ram which in turn was controlled by a lever in the cabin. When not attached to the extended section of the mast or jib, the mid section would lie horizontally along the chassis of the truck. Hydraulic rams would then allow the further section of the jib to be raised and lowered from a position attached to the mid section. This mechanism allowed industrial bins to be placed upon and removed from the truck. When the bins needed to be emptied, the mid section of the jib was attached to the further section by means of the hooks. These hooks kept both sections in place and, accordingly, the whole of the mechanism could be raised from the pivot point of the rollers at the rear of the chassis away from the cabin. This created an extended jib or mast and allowed for a much greater range for the bin to be emptied. 22 Mr Wood's evidence was that, whilst Mr Whitehouse was carrying out repairs to the wiring on the truck, it became necessary to repair some wiring near the differential. In order to get access to that wiring, it was decided that the hydraulic system could be lifted up. Because the part of the vehicle on which Mr Whitehouse was to work was underneath the mid section, it was necessary for Mr Wood to apply the pneumatically operated hooks, which he did, and he then lifted the whole of the section, both parts of which were attached by the hooks by using the hydraulic ram. This left the jib section, the mid part of which was above the area where Mr Whitehouse had to carry out work, suspended in the air, held in place by the hydraulic rams and also the pneumatically operated hooks. 23 After lifting the jib, Mr Wood left the cabin of the vehicle. He observed that Mr Whitehouse and Mr Targett had a steel bar measuring approximately one inch thick by approximately one metre long, which they tried to put between the chassis and the mid section of the jib, as a safety measure. This proved to be inappropriate because the steel bar kept slipping against the steel of the jib. In oral evidence, Mr Wood, the driver of the truck, stated that a discussion took place between the employees of Tibby Rose about the use of a prop after the jib had been lifted from the back of the truck, to allow better access for Mr Whitehouse. Mr Wood said he was asked by Mr Whitehouse if he had a "four by two timber" that could be used as a prop. However, he did not carry such material, nor had he been given any training or instruction in respect of the use of a prop. It was after this exchange, according to Mr Wood's evidence, that Mr Whitehouse said "that would be okay". Mr Wood replied: "the hooks are connected. They can't come down while the hooks are connected. It should be okay to work on." No other instruction was given by Mr Wood to any of the employees servicing the truck. Mr Targett, who was an employee of Tibby Rose, gave evidence during cross-examination that he had never been trained in relation to putting props under hydraulic equipment if an employee was working beneath such equipment and that there was no system in place requiring the use of such props. 24 Whilst Mr Whitehouse was working at the rear of the vehicle underneath the raised jib, Mr Targett accessed the cabin of the truck. He replaced the fuse box, but stated that he did not touch any controls in the cabin. His evidence was that he performed this work from the passenger's seat in the cabin and was well away from the lever which operated the pneumatic hooks. As Mr Wood returned to the vehicle after getting a drink, he heard a loud hiss sound which, to him, indicated the releasing of air. Mr Wood realised that the pneumatic hooks had been released from the extended position of the jib and that there was nothing holding the mid section of the jib up. He yelled out to Mr Whitehouse to get out from the rear of the vehicle, but the mid portion of the jib fell down, crushing Mr Whitehouse. 25 The evidence of Constable Henville, who extensively examined the vehicle after the incident, was that the only means by which the hooks could have been released was the activation of the lever which controlled the pneumatic rams. That lever is spring loaded and has three positions. In order to attach the hooks by using the pneumatic rams, the lever is put into the upper position. It can only be placed in that position if a protective sheath is raised by placing two fingers around it and raising the sheath against pressure applied by the thumb. Once in this raised position, the lever will remain there unless pushed downwards. It does not take a lot of pressure to push the lever downwards and there is little travel for the lever. There is no need to raise the sheath in order to lower the lever from the uppermost position. Once it is lowered, it then stops in the next position down, and cannot be moved from that position without the sheath being raised. 26 There was a great deal of controversy concerning the effect of lowering this lever from the uppermost position to the next position down. It was the clear evidence of Constable Henville that once the lever had reached this intermediate position, this would result in the hooks becoming disengaged. Constable Henville was cross-examined vigorously on this aspect of his evidence but he remained certain. 27 Mr Wood said that the lever was in this intermediate position when he saw it immediately after the incident. Mr Wood was cross-examined about the effect of moving the lever to this intermediate position. Although he said that this would not be sufficient to release the hooks, he also said that he did not know about that intermediate position, because he always pulled the lever down to the very lower position when deliberately unlocking the hooks. This evidence was repeated several times during the course of the cross-examination itself. Accordingly, there are inconsistencies, which we do not derive from any attempt by Mr Wood to conceal the truth. The inconsistencies result, in our opinion, more from confusion created by cross-examination. Ultimately, Mr Wood was unable to explain why the hooks had disengaged with the lever in the intermediate position, if that position did not activate the pneumatically driven rams. 28 Mr Turnbull gave evidence that, in his opinion, it was necessary to push the lever down past/beyond the midpoint towards the lowest point, in order to deactivate the hooks and that this would involve raising the sheath in the manner which we have already described. However, Mr Turnbull said that he did not examine the control mechanism after the incident and his evidence does not indicate when the last occasion was that he had used the lever before the incident. 29 Evidence was also given on behalf of the defendant by Mr Falanga, who has expertise in this type of equipment. However, whilst he was able to describe the way in which the equipment normally operated, he had, at no time, used the lever in the vehicle or had ever tested it. 30 In all the circumstances, we accept the evidence of Constable Henville. This evidence was to the effect that, as we have said, the lever could easily be moved from the top position to the mid-position, without the sheath being raised and this released the hooks. In our opinion, this constitutes a situation where there is no protection against the deliberate, or unintended, release of the pneumatically driven hooks, which was the only mechanism in place to stop the midsection of the jib from collapsing onto Mr Whitehouse. 31 On the basis of the evidence given in the proceedings, we are unable to conclude whether the pneumatic lever, which ultimately controlled and caused the removal of the hooks, was activated by Mr Targett either intentionally, or unintentionally. It is clear from the evidence that he was the only person in the vicinity of the cabin at the time that this occurred. Mr Vrbanc was working nearby, Mr Boulton was in the office, Mr Wood was near the vehicle and Mr Whitehouse was working on the rear section of the vehicle. 32 However, there is one further piece of evidence which needs to be taken into account in this regard, and that is that immediately after the incident, Mr Wood observed that some electrical switches which were attached to part of the dashboard of the vehicle which had been removed were hanging down close to the lever which operated the pneumatics. It seems, from the evidence, that this bank of switches may have been removed by Mr Whitehouse. Mr Targett was certain that he did not remove the switches. Mr Wood thought that the switches had been hanging in the same position before he had operated the mechanism of the vehicle to place the hooks into position and lift the jib using the hydraulic rams. It is possible, therefore, that in some way, this bank of switches which was hanging in proximity to the lever, came into contact with it and pushed it to the midpoint. In these circumstances, it is inappropriate to make any positive finding that Mr Targett in some way activated the lever. 33 There was no issue in respect of the absence of appropriate or proper labelling of the levers and their function, so much being conceded by Mr Turnbull in his evidence. 34 It was Inspector Ching's evidence that it was part of the system of work that the levers needed to be labelled to identify their function. Inspector Shoobert's evidence was that it was important that the levers be properly labelled, not only in order to protect the operator or the driver of the truck, but any individual who may, from time to time, have access to the cabin of the truck. Such persons, according to Inspector Shoobert, would not necessarily know what the levers were for if they did not operate the truck, particularly when the truck was being serviced. The placing of identifying labels on all of the hydraulic control levers, both external and internal of the vehicle, was required to avoid any risk to safety. Offence under Section 17(1)(b) of the Act 35 It is possible to resolve the question of the existence of an offence under s 17(1)(b) of the Act relatively shortly. The starting point for this consideration must be to observe that the performance of work by a person near or under a large elevated hoist on the back of a truck, presented a clear risk to the safety of persons working underneath it, due to the potential of the hoist falling on top of a person. In order for such work to be carried out, an employee of the defendant was required to operate the hoist on the truck. To that extent, the defendant had control of the truck whilst the repairs were being carried out. Furthermore, the defendant did not have any systems in place to ensure that if a person, other than the driver, entered the cabin of the truck, such person did not interfere with the control levers. Such a system would have required the driver to at least warn persons of the risk associated with interfering with the control levers. Mr Turnbull gave evidence during cross-examination in respect of the lack of a safe system of work as follows: Q: We talking about that if someone went under the truck, sorry the-? A; Raised jib. Q: And it came tumbling down whether accidentally or otherwise, that it would have had catastrophic or serious-- A: Yep. Q: Consequences for them. And I then asked you that was something that was able to be identified prior to this incident, that is, that possibility? A: Anything's possible yes. Q: One of the reason that people weren't to go under the truck was so as to avoid that very risk- sorry, I say "under the truck" under the jib, was to avoid that very risk, correct? A: Correct. Q: And that was something that you identified prior to this incident? A: As I say, I don't recall but yeah. Q: Certainly something that could have been identified prior to this incident, correct? A: Yep. 36 It is appropriate to consider each element of the case advanced by the prosecution. First, it is convenient to consider the allegation that the defendant failed to provide a safety mechanism to prevent the jib tipping midsection of the truck from descending whilst service/repair work was being carried out underneath it. There can, in our view, be no dispute, as we have already observed, that the risk to health, safety and welfare of persons working underneath the jib or hoist was created as a result of the absence of any safety prop. 37 Mr Turnbull gave evidence that fixed tipper trucks have built-in safety props. The particular vehicle involved in the incident was not a fixed tipper truck. The reason advanced for a prop in a fixed tipper truck is because the tipper cannot be removed from the vehicle. Therefore, if work is required on it, there is a safety prop. Mr Turnbull said that, prior to the incident, he had not given consideration as to whether or not it was appropriate to have a service prop built on the truck involved in the incident. On the day of the incident, the evidence was that Mr Whitehouse and Mr Targett experimented with the use of a metal bar as a prop, but this proved unsuitable. In the absence of any effective prop, the danger of the jib or hoist collapsing was clear. 38 The evidence is that the defendant installed a prop on the vehicle after the incident. It was the defendant's submission that Tibby Rose should have been attuned to the risk of carrying out work under the jib without a prop. We do not regard this submission as enabling the defendant to resist the charge. Not infrequently, a number of employers, contractors, or individuals may be involved in working at a particular workplace. All the parties may have responsibilities in relation to the work being carried out at a particular site. Risks of injury may arise as a result of failings by a number of parties involved in the operation, or of the difficulty in co-ordinating between different operators: see, for example, the principles set out in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 as adopted by the Full Bench in JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; South Sydney Junior Rugby League Club Limited v Inspector Bestre (2005) 142 IR 373; PF Thearle & Co Pty Limited v WorkCover Authority of New South Wales (Inspector Reynolds) (2002) 129 IR 262. 39 However, where an operator continues to operate in circumstances that present an obvious and known risk to persons working at the site and which constitutes an offence under the Act, the culpability of the operator will not be removed by the fact that other persons may also have responsibilities in relation to the safety at the site, or related responsibilities as to a particular operation at that workplace. Such a matter may be relevant to the determination of sentence, or perhaps to a defence under s 53 of the Act. It does not, however, remove the existence of an offence subject to any defence. We understand the defendant to have generally conceded that the failure to have a prop in place created an offence under s 17(1)(b) of the Act. The defendant accepted that the evidence established that it did not supply a safety prop. We find that the defendant failed to ensure a safe system of work by failing to provide a safety prop or other mechanism to prevent the jib from collapsing whilst repair work was being carried out on the vehicle below the jib. 40 Secondly, it was alleged that the defendant had failed to correctly identify all levers and switches, both inside and outside the vehicle, as to their function(s). The defendant conceded that the various levers and switches, both inside and outside the cabin, were not labelled. The defendant took steps after the incident to ensure that each lever and switch was correctly labelled. It was not contended by the prosecutor that the lack of labels on the switches and levers caused the incident. However, clearly, it gave rise to the relevant risk to safety in circumstances where a switch or lever was not labelled appropriately. It is the detriment to safety that is relevant, rather than the cause of the incident. 41 Thirdly, it was alleged that the defendant had failed to install a safety lock, shroud or other safety mechanism on the hooks lever. The evidence was that there was no safety lock on the lever. 42 The defendant submitted, however, that this particular had not been made out because the evidence disclosed that a two step process was required to operate the lever. First, the shroud had to be pushed forward and secondly, the lever pressed. It was submitted that this required two different motions in different directions. It followed, so it was submitted, that this, therefore, qualified as a safety mechanism. In other words, the lever could not be operated unless the shroud was pulled forward and the lever depressed. It was submitted, therefore, that the lever could not be accidentally bumped. The defendant conceded that this gave rise to a question as to what caused the lever to move. It was submitted by the defendant that in the absence of any evidence that an employee deliberately moved the lever, that the bank of switches fell down when they were taken out and one of the wires became caught behind the shroud and the motion of trying to free it may have pushed the shroud forward. We find that the defendant failed to ensure that the lever which operated the pneumatic hook system could not be disengaged causing the jib to fall. 43 An amount of evidence was directed to whether the lever may have been bumped by Mr Targett when he entered the cabin through the passenger's side door to work on the wiring. It is unnecessary to engage in a search for the cause of the accident. What is required is a focus on the risk to safety that occurred on the day of the incident. The risk that was occasioned to someone working under the jib was created, first, that the lever was not secured or fixed, and secondly, by the fact that the lever was not properly labelled. That risk existed whether or not the jib collapsed and whether or not Mr Targett knocked the lever. The risk of not having a properly labelled switch created the possibility that someone might either advertently, or inadvertently, interfere with the switch because it did not have an appropriate identification label. Furthermore, the absence of any safety mechanism securing the lever allowed it to be bumped or knocked and therefore to become active. If a prop had been placed under the jib, it would have prevented it falling in the event of this occurring. 44 It follows from the foregoing discussion, that the defendant failed to ensure that the truck was safe and without risk to persons repairing, or servicing, the truck and that such persons were adequately supervised and instructed on the safe operating procedures of the truck. The defendant is thereby guilty of an offence under s 17(1)(b) of the Act in relation to the charge brought in those proceedings, unless it is able to make out a defence under s 53 of the Act. Section 53 defence 45 Section 53 of the Act provided as follows:

53 Defence It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 46 To establish a defence under s 53 of the Act, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act, or that the commission of the offence was due to causes over which the defendant had no control against the happening of which it was impracticable to make provision: see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 457; Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 57 at [82] and Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at [102]. 47 In this case, the defendant contended that the allegation in the particular that the defendant was the owner of the truck, had not been proved. It was contended that the particulars given in support of the charge to substantiate the allegation that the defendant had, to any extent, control of the truck, was that the defendant, at all material times, was the owner of vehicle registration "WUBISH". It was further alleged that the defendant, at all material times, engaged the services of Tibby Rose to carry out work on the defendant's vehicle. 48 The evidence of Mr Turnbull was that the truck registered "WUBISH" was owned by "Bros Bins Pty Ltd" and not the defendant. It followed, so it was submitted, that there was no evidence that the defendant engaged the services of Tibby Rose, and therefore, that the charge could not succeed, as the remaining particulars went to the allegation of having control over the truck. 49 In respect of this contention, it is clearly misconceived. The vehicle was taken to Tibby Rose by Mr Wood, an employee of the defendant. It was the defendant who was operating the vehicle and who was seeking to have the electrical faults repaired. Furthermore, it was not an essential element of the offence that the defendant had ownership of the truck. It is the element of control which is necessary to be made out by the prosecutor in order to make out the charge, not ownership. See 17(1)(b) of the Act set out earlier in this judgment. 50 We have already found that the element of control has been proven beyond reasonable doubt. In any event, for the charge to be made out, it was not necessary for the prosecutor to prove each and every one of the particulars: Morrison v United Collieries Pty Ltd (2005) 146 IR 154 at [160]. 51 The defendant has failed to discharge its onus that "it was not reasonably practicable for it to comply with the Act" and that it had no control over the cause of the offence. In this case, the prosecutor has demonstrated the measures that were available and that it was reasonably practicable for the defendant to adopt. The prosecutor's case was limited to allegations that the defendant failed to ensure that the truck was safe and without risk to health. Secondly, that it failed to provide a safety prop or other mechanism. Thirdly, it failed to correctly identify levers and switches inside and outside the plant. All of these allegations have been established. It was reasonably practicable for each of these risks to be avoided by the defendant. The defendant has failed to establish a defence under s 53 of the Act. 52 It follows that the defendant is found guilty of the charge brought against it. ORDERS 53 We make the following orders: 1. Bros Bins Systems Pty Ltd is found guilty of the charge brought against it.

Inspector Ching v Bros Bins Systems Pty Ltd

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