Inspector Ching v Bros Bins Systems Pty LtdInspector Ching v Exo Pty Ltd t/as Tibby Rose Auto - [2004] NSWIRComm 197 - NSWIRComm 2004 case summary — Zoe

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Inspector Ching v Bros Bins Systems Pty LtdInspector Ching v Exo Pty Ltd t/as Tibby Rose Auto

[2004] NSWIRComm 197

Industrial Relations Commission (NSW)|2004-08-02|Before: Marks J, Mr J, Mr P

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2004-08-02

Before

Marks J, Mr J, Mr P

Catchwords

09/10/2002
09/11/2002
09/12/2002
09/13/2002

Source

Original judgment source is linked above.

Catchwords

09/10/200209/11/200209/12/200209/13/200207/12/200407/13/200407/14/2004 DATE OF JUDGMENT: 09/09/2004

Judgment (60 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Ching v Bros Bins Systems Pty LtdInspector Ching v Exo Pty Ltd t/as Tibby Rose Auto [2004] NSWIRComm 197 PROSECUTION Inspector Barnabas Ching PARTIES : DEFENDANTS Bros Bins Systems Pty Ltd Exo Pty Ltd t/as Tibby Rose Auto FILE NUMBER: 5012 and 5013 of 2001 CORAM: Marks J CATCHWORDS : Occupational health and safety prosecution - workshop auto electrician killed whilst repairing industrial rubbish truck - no specific instructions given as to manner of carrying out repairs - no instruction or training in use of props or other safety devices - no structured or systematic approach in system of work or risk assessment - causal nexus submission rejected - casual act of negligence submission rejected - further findings as to defendant in control of truck: failed to install safety mechanism on truck and provide safety prop - offences found proven. LEGISLATION CITED : Occupational Health and Safety Act 1983 ss 15(1) 17(1)(b) 53 Drake v WorkCover (NSW) (1999) 90 IR 432 CASES CITED : Inspector Ching v Bros Bins Systems Pty Ltd (2003) NSWIRComm 3086 McMartin v The Broken Hill Proprietary Company Limited ((1998) unreported) State Rail Authority of NSW v Dawson (1990) 37 IR 110 HEARING DATES: 09/09/2002; 09/10/2002; 09/11/2002; 09/12/2002; 09/13/2002; 07/12/2004; 07/13/2004; 07/14/2004 DATE OF JUDGMENT: 09/09/2004

[21]

9 The vehicle itself was a 1977 Nissan Diesel truck. According to evidence given by Inspector Barbosa of the WorkCover Authority of New South Wales, mounted on the chassis of the truck: "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." It is not necessary that I describe in any further detail the mechanism for raising and lowering the hoist mechanism through the hydraulic system. However, it is necessary to describe in a little detail the pneumatically driven hook system and the means by which the hooks are engaged and disengaged. The mast or jib comprised two sections. Whilst the evidence in the proceedings seems to have attached different names to the components, I shall endeavour to use language which is, hopefully, reflective of what I perceived to be that commonly used in the course of the evidence given in the proceedings. The portion of the mast or jib 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 the 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 to which I have referred. 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 carry so that the bin could be emptied.

[45]

33 On the basis of the evidence given in these proceedings I am satisfied that neither Exo nor Bros Bins had undertaken any structured or systematic approach in the creation of a system of work and in the recognition and appraisal of risks associated with the circumstances in which, on 22 November 1999, rectification work was carried out on the truck in question at the premises of Exo. Whilst common sense might have dictated that a prop either be installed on the vehicle or utilised by Exo, there was certainly no evidence of any structured approach to the provision of a prop at the Exo premises. At best, there were materials which were lying around and which were used on an "as needs" basis in order to prop up equipment. It was the evidence of Mr Boulton that, to his knowledge, Exo had never worked on a vehicle of this kind previously. That fact of itself alone required that someone assess what needed to be done to ensure that the work should be carried out safely. Even if it could be said that it might have been sufficient to have relied on the fact that the jib was locked into place by the pneumatically driven hooks, it would nevertheless have been necessary to ascertain the circumstances in which the hooks might become disengaged. This would have required both ensuring that neither Mr Targett nor anyone else approached the cabin whilst Mr Whitehouse was working underneath the raised jib and that the state of the cabin was such that no item of equipment in it could have accidentally come into contact with the lever. Furthermore, there needed to be an assessment of what would happen if the lever moved from its uppermost position to the next position down and as to whether this would have the effect of disengaging the hooks. All of this presupposes that it would have been safe for Mr Whitehouse to have worked under the jib without some form of prop mechanism being used as a secondary safety matter. Of course, in the circumstances of these proceedings, the use of a secondary supporting mechanism was crucial. As I have said, there was no evidence of any systematic instruction or training given by Exo to any of their employees whether orally, in writing or a combination of both. Neither was there any evidence of any supervision of any ad hoc understanding or arrangement directed to minimising risks to health and safety at the workplace.

[52]

40 Whilst the Full Bench in those proceedings noted the necessity for the prosecution to demonstrate a causal nexus between the breach and the detriment occasioned to the employee, the Full Bench dealt in its judgment specifically with two alternative hypotheses. The first was whether a failure to properly supervise in the circumstances of those proceedings was relevantly a failure of the employer for the purpose of s 15 of the Act. The second was whether the failure by the foreman in the allocation of work and in supervision of the employee was in effect a casual omission for which the employer was not relevantly to be held responsible. At p 125, the Full Bench observed: "Whilst we have found there was a failure to relevantly supervise Mr McFadyen, that failure was the failure of the foreman. On balance, and viewing the evidence as a whole, we are unable to be satisfied beyond a reasonable doubt that the failure was also that of the appellant. There was no suggestion in the case that the appellant had not laid down a safe system of work, only that it had not supervised Mr McFadyen so as to ensure his safety. But the facts are clear in that there was ample supervision available through the foreman and at least two other qualified linesmen; it was a matter of their proper deployment according to the work then in hand. That deployment, particularly on a remote site, must be a matter for the senior supervisor present. There was in fact a failure by the foreman to adhere to the procedure or system of work laid down in clear terms by the appellant. The appellant, in our view, cannot be held liable under s 15 in such a situation, once it be found qualified supervisors have been provided by it. Our conclusion on the facts is that it is equally consistent for the accident to have occurred by reason of a casual omission by the foreman in the allocation of work to Mr McFadyen and in the supervision of him in the performance of that work. The appellant, in our view, having laid down a safe system of work, has not done or omitted to do anything causally connected with this tragic accident. What occurred was beyond the employer's control."

[57]

As against the defendant Bros Bins I find that on 22 November 1999: 1. That the truck previously described constituted plant provided for the use or operation of persons at work, not being employees of the defendant, namely that the defendant required that employees of Exo and in particular Matthew Whitehouse carry out work on the vehicle, so providing the vehicle for his use at work. That vehicle was plant for the purpose of s 17(1)(b) of the Act. See Inspector Ching v Bros Bins Systems Pty Ltd (2003) NSWIRComm 3086, a decision of the Full Bench of this Court. 2. That the defendant had control over the truck whilst at the premises of Exo in that its employee retained control over and manipulated the hydraulically raised jib system and the pneumatically controlled hook system. 3. That the defendant failed to provide a safety prop or other mechanism to prevent the tilt-tipping mid-section of the truck from falling whilst work was being carried out underneath it. 4. That the defendant failed to ensure that the lever which operated the pneumatic hook system could not be disengaged or otherwise moved in circumstances where, to do so, would cause the raised jib to fall. 5. That the defendant failed to install a safety lock or some other mechanism to ensure that the lever which operated the pneumatic system could not be moved inadvertently or otherwise accidentally. 6. That the defendant failed to instruct and train its employee David Wood to ensure that any person not an employee of the defendant who entered the cabin of the truck whilst work was being performed on it was warned not to touch or otherwise cause the lever of the pneumatic system to move. 7. That the defendant failed to warn its employee David Wood that he should in turn ensure that the contents of the cabin on the truck were such that they could not cause the lever of the pneumatic system to move so as to disengage the hooks. 8. That the defendant thereby failed to ensure that the truck was safe and without risk to health contrary to s 17(1)(b) of the Act.

Inspector Ching v Bros Bins Systems Pty LtdInspector Ching v Exo Pty Ltd t/as Tibby Rose Auto

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Judgment (60 paragraphs)

Cases Cited (2)