Inspector David Lyons v Duffy Bros Country Fresh - [2002] NSWIRComm 95 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

Inspector David Lyons v Duffy Bros Country Fresh

[2002] NSWIRComm 95

Industrial Relations Commission (NSW)|2002-05-20|Before: Marks J, Ms P, Mr P

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-05-20

Before

Marks J, Ms P, Mr P

Catchwords

03/19/2002 DATE OF JUDGMENT: 05/20/2002

Source

Original judgment source is linked above.

Catchwords

03/19/2002 DATE OF JUDGMENT: 05/20/2002

Judgment (69 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector David Lyons v Duffy Bros Country Fresh (Darlinghurst) Pty Ltd [2002] NSWIRComm 95 PROSECUTOR Inspector David Lyons on behalf of The WorkCover Authority of New South Wales PARTIES : DEFENDANT Duffy Bros Country Fresh (Darlinghurst) Pty Ltd

[3]

FILE NUMBER: IRC 5435 of 2000 CORAM: Marks J CATCHWORDS : Occupationall Health and Safety - Plea of guilty in part to alleged breach - Held guilty of totality of charge - Defendant not entitled to rely on opinion and work of contractor - Duty to provide training and information - Defendant not entitled to rely on s 10 Crimes (Sentencing Procedure) Act - Monetary penalty imposed LEGISLATION CITED : Occupational Health & Safety Act 1983 s 15(1) Crimes (Sentencing Procedure) Act 1999 s 10 Jones v Dunkel (1958-1959) 101 CLR 298 Genner Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Guillarte) (2001) NSWIRComm 267 CASES CITED : Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (1999) 90 IR 464 Capral Aluminium Ltd v WorkCover Authority of NSW (2000) NSIRComm 71 Cameron v The Queen (2002) HCA6 WorkCover Authority of NSW v Profab Industries (2000 100 IR 64 HEARING DATES: 03/18/2002; 03/19/2002 DATE OF JUDGMENT: 05/20/2002

[10]

4 The prosecutor and the defendant reached agreement about a number of factual matters which agreement was the subject of a "Statement of Facts" filed in the proceedings. These were as follows: 1. At all material times the prosecutor was an Inspector appointed pursuant to the provisions of the Occupational Health and Safety Act 1983 and empowered by section 48 of the Act to institute proceedings in this matter. 2. At all material times the defendant Duffy Bros Country Fresh (Darlinghurst) Pty Limited (ACN 070 278 410) was an incorporated company with its registered office located at Level 1, 147 Northumberland Street, Liverpool in the State of New South Wales. 3. At all material times the Defendant carried out the business of retail supply of fruit and vegetables at a retail shop located at 17 Spring Street, Chatswood in the State of New South Wales ("the premises"). 4. At all material times the Defendant employed Sabash Madhavan Nair ("Nair"), 31 years, as a labourer at the premises. 5. On 13 November 1998 Nair was assisting the Defendant's shop manager to move a garbage bin from the roadway into the loading dock area at the premises. Nair fell backwards approximately 2.7 metres down the hoist shaft from the loading dock level to the coolroom level sustaining spinal injuries. The bin fell down and landed on top of him. Nair was taken by ambulance to Royal North Shore Hospital. 6. On 25 January 1999, the Prosecutor attended the site and observed as follows: (a) The scene of the accident was located in the loading dock area of the premises where there was a Fixed Platform Hoist, the only one of its kind; (b) The hoist travelled via the shaft from the loading dock ground level down to the coolroom level; (c) In both the loading dock area and the coolroom area the hoist enclosure measured 1800mm long by 1800mmwide by 2250mm high and was fitted with a metal, mesh roller door; (d) The hoist was electronically powered and hydraulically operated; (e) On the side wall of the hoist was a sign stating "SAFE WORKING LOAD 1500KG NO PASSENGERS ALLOWED"; (f) Attached to a post, adjacent to the hoist at the lower coolroom level, were signs stating "WARNING UNAUTHORISED PERSONS ARE PROHIBITED FROM OPENING THE HOIST", "PERSONS AUTHORISED MUST FOLLOW SAFETY PROCEDURES AT ALL TIMES", "SAFETY DOORS ARE TO BE KEPT DOWN AT ALL TIMES EXCEPT WHEN PLACING ITEMS TO BE TRANSPORTED". "FAILURE TO COMPLY WILL RESULT IN INSTANT DISMISSAL". (g) On the loading dock level, on the left hand side pf the hoist, at a height of 1400mm above floor level was located a metal box containing the controls for the hoist. These controls consisted of a green button over a red button; (h) On the coolroom level the controls for the hoist also consisted of a green button over a red button. These controls were located on the right hand side of the hoist at a height of 160mm above ground level; (i) At the time of inspection the hoist was fitted with proximity switches at both the loading dock and coolroom levels; (j) The distance from the loading dock floor level to the coolroom level was 2700mm; (k) At the time of inspection the hoist was not fitted with operational mechanical interlocks that prevent the roller doors of the hoist from opening when the platform was positioned at the corresponding floor level; (l) At the time of inspection the roller door of the hoist at the loading dock level could be opened fully whilst the hoist platform was positioned at the lower coolroom level; (m) The loading dock floor and the coolroom floor outside the entrances to the hoist were concrete and the lighting of the area was satisfactory. 7. As a result of his inspection, the Prosecutor found as follows: (a) The accident occurred as Nair was assisting the Defendant's shop manager to bring a garbage bin into the loading dock area of the premises; (b) Nair fell approximately 2.7 metres down the hoist shaft from the loading dock level to the coolroom level; (c) At the time of the accident the loading dock level access door to the hoist was in the open position and the hoist platform was positioned at the lower coolroom level; (d) At the time of the accident the hoist was not fitted with devices to prevent the doors of the hoist from being opened except when the hoist platform was at the corresponding level and this hazard had existed since at least the end of November 1997; (e) There were no written operating procedures for the hoist at the time of the accident; (f) Approximately 10 weeks after the accident the loading dock level access door to the hoist could be opened fully while the platform of the hoist was positioned at the lower coolroom level; (g) At the time of the inspection on 25 January 1999, the centrally located hinge pin of the scissor mechanism of the hoist was partially displaced and both the front and rear left hand lower corner pin housings were enlarged so as not to provide a "snug" housing for the pins and the hoist pit contained approximately 200mm of water; (h) The Defendant failed to put in place adequate measures to restrict access by employees at the premises to the hoist and the hoist shaft.

[11]

5 Evidence given by James Whitfield the General Manager of a company within the Duffy Bros group was that the defendant had leased the shop in Chatswood from 1 October 1997, but did not commence trading there until 3 December 1997. One of the matters to be attended to before trading commenced was the overhaul of the hoist situated within the shaft where Mr Nair fell. Some time before July 1997, presumably in anticipation of the lease being signed, Mr Whitfield retained Mr Jim Pereth of Multirig Pty Ltd to inspect the hoist. An inspection occurred on 8 July 1997 as a result of which Multirig Pty Ltd forwarded a quotation to carry out certain work on the hoist including an electrical upgrade with new switches, a mechanical and restructural refurbishment, the installing of new roller doors and the repair of the motor if necessary. Multirig Pty Ltd commenced work on the hoist in about mid October 1997. That company encountered some difficulties in carrying out the work. The nature of the difficulties was technical and not understood by Mr Whitfield. Mr Whitfield said that he told Mr Pereth to do whatever needed to be done to fix it so that the hoist complied with "all safety standards". On 25 November 1997 Mr Whitfield forwarded a facsimile transmission to Mr Pereth stating, inter alia, "We need the hoist operating to WorkCover standards ASAP as the whole shop operation centres around the hoist." Some difficulties were encountered with the presence of water at the bottom of the hoist shaft which are irrelevant for present purposes, other than that these difficulties appear to have been attended to by Mr Pereth. The hoist appears to have been used after the shop commenced trading although not all work was completed prior to that date. Shortly after the shop opened the hoist stopped working and Mr Pereth was asked to rectify the problems. Despite this Mr Pereth failed to attend to the work in a timely fashion. He is alleged to have said to Mr Whitfield at the end of March 1998 that the hoist could be used and that it complied with all safety standards. Some of the work which had been carried out through Multirig had in fact been attended to by Mr Theodore Hatze an electrical engineer carrying on business under the business name Tesla Electronics. In fact some of the original electrical repair work had been carried out by Mr Hatze in November and December 1997. That work had been sub-contracted to Tesla by Multirig Pty Ltd.

[53]

46 In appropriate circumstances questions may arise as to the extent to which an employer and others bound by the provisions of the Act are required to assess the expertise and competency of any expert retained by them. For the purpose of dealing with these proceedings it is not necessary that I deal in detail with this issue, although I would have thought that the difficulty which Mr Whitfield said he encountered in obtaining an efficient and effective response from Mr Pereth for the execution of the necessary work on the hoist may have given rise to some concern. Whilst Mr Whitfield did not profess to have any expertise in matters electrical or mechanical, this did not, in my opinion, absolve the defendant from properly considering what was proposed by Mr Pereth. Logically, the installation of the reed switches precluded the hoist from being operated unless the doors were closed. But they did not preclude a door from being opened whilst the hoist was stationary. Accordingly, they would not prevent the upper level hoist door from opening whilst the hoist was stationary at the lower level. Whilst employers may be excused from questioning the processes that an expert advises ought to be utilised for the purpose of securing the safety of a piece of equipment, they are expected to assess the impact of the operation of safety devices on the utilisation of the equipment. This is because employers are required by the Act to conduct themselves in a proactive and vigilant manner so as to reasonably anticipate any risk to the health and safety of employees. That is, the defendant should, in my opinion, have anticipated that despite the installation of the reed switches as recommended by Mr Pereth there would still be a risk of injury in the manner in which I have described. A proactive and vigilant approach to the recommendation of Mr Pereth would have involved thinking about the effect of the recommendation on the manner in which the hoist could be operated and would, as a matter of commonsense, have produced the logical result that the recommendation of Mr Pereth was flawed.

Inspector David Lyons v Duffy Bros Country Fresh

At a glance

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Judgment (69 paragraphs)

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Cases Cited (5)

Cited By (1)