Inspector James v Terra Civil Pty Ltd

Judgment 1This prosecution is brought by Inspector Amanda James of the WorkCover Authority of New South Wales against Terra Civil Pty Ltd ("Terra Civil" or "the defendant") under s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"), by way of an amended Application for Order. It is alleged the defendant, on 1 May 2008, contravened s 8(2) of the Act in that it failed to: By its acts or omissions particularised below, ensure that people (other than the defendant's employees) and in particular Kevin Finnemore, were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work contrary to section 8(2) of the Occupational Health and Safety 2000 . In particular: (a) The 'work' was excavation work and the removal of excavated material associated with road widening work at the premises. (b) The 'risk' was the risk of injury to people who were not the defendants employees of being struck down by moving vehicles. (c) The defendants 'place of work' was the premises. (d) The defendants undertaking was, amongst other things, to provide on a contract basis earth moving equipment, excavation services and removal of excavated materials. (e) The 'exclusion zone' is an area of work that is within 3 metres of moving plant or within the area of revolving plant. (f) The people who were not the defendants' employees who were exposed to the risk were Kevin Finnemore. (g) The defendant failed to have a spotter or observer whose duties were whilst the work was being performed (i) Co-ordinate the movements of prime movers with attached trailers that an exclusion zone was maintained and that people did not enter the exclusion zone; and (ii) Ensure that pedestrians were clear of all moving traffic within the exclusion zone whilst work was being performed. (h) The defendant failed to have a dedicated communication system to alert workers when the prime mover and attached trailer were ready to leave the exclusion zone in accordance with Code of Practice 2004 for Moving Plant on Construction Sites whilst the work was being performed. (i) The defendant failed to undertake a risk assessment that identified and considered the risks associated with the movement of prime movers and trailers within the exclusion zone, particularly in relation to the possibility of pedestrians being present in the exclusion zone at the time of the movement. (j) The defendant failed to inform non employees undertaking excavation work and the removal of excavated materials associated with road widening works; (i) that there was to be a safe distance between employees and vehicles (including trailers) at all times; and (ii) there should be a spotter or observer present when people were working within the exclusion zone. (k) The injuries sustained by Kevin Finnemore were a manifestation of the risk. 2The defendant pleads guilty to the charge. 3Mr R Reitano of counsel appeared for the prosecution and Mr B D Hodgkinson SC appeared for the defendant. The prosecution relied upon: an amended Application for Order; agreed Statement of Facts; Factual Inspection Report of Inspector Amanda James dated 12 May 2008; Factual Inspection Report of Inspector Anthony Nicholson dated 12 May 2008; four colour photographs taken by Amanda James dated 1 May 2008; 32 colour photographs taken by Constable Nathaniel Norsa; Australian Standard 1742.3-2002 Manual of Uniform Traffic Control Devices Part 3 Traffic control devised for work on roads; WorkCover Code of Practice Moving Plant on Construction Sites 2004; WorkCover Safety Alert Moving Plant on Construction Sites 29 December 2006; and a Prior Convictions Report - Terra Civil Pty Ltd dated 2 February 2011. 4The defendant relied upon an affidavit of Emilio Spinozzi, a Director of Terra Civil, sworn 7 February 2011, with attachments including copies of the corporation's Safety Work Method Statement and its pre-existing safe work policies. The defendant also relies on Work Order No 003 of the RTA addressed to Terra Civil. 5There was an Agreed Statement of Facts which relevantly reads: 3 At all material times the Roads and Traffic Authority of New South Wales (RTA) was a body corporate constituted pursuant to Section 46 of the Transport Administration Act 1988 . 4 The RTA had the capacity to approve and assign to external contractors work to be carried out on public roads within the State of New South Wales. 5 The RTA employed Craig Watson as Acting Quality Assurance PQR, Raymond Eaton as Construction Supervisor, Ratko Ivanovski as Team Leader and David Ball as a labourer. 6 The RTA subcontracted Terra Civil to provide earthmoving equipment, perform excavation works and remove excavated material from the site. Terra Civil employed Emilio Spinozzi, Adamo Spinozzi and Frank Antonizzio to conduct works at the site on its behalf. 7 Terra Civil operated two prime movers with attached trailers which were used to remove excavated material from the site. Adamo Spinozzi operated a silver coloured freighliner prime mover registration TRA 025 with an attached dog trailer registration U10129. Frank Antonizzio operated the second freightliner prime mover registration TRA 024 with an attached dog trailer registration TRA 024. Emilio Spinozzi operated a Hitachi excavator registration 75381-C. 8 The RTA subcontracted Online Concrete Sawing Pty Ltd ("Online Concrete Sawing") to provide a water cart and a water cart operator for the project. Online Concrete Sawing were paid hourly for the provision of a water cart and they supplied a plant operator. Online Concrete Sawing employed Kevin Finnemore to conduct works at the site on its behalf. 9 On 29 October 2009 Online Concrete Sawing changed its name to South Coast Excavations Pty Ltd. All other aspects of the company remained the same. 10 The RTA subcontracted Split Bobcat Services Pty Ltd ("Spilt Bobcat") to operate a bobcat to skim and level the median strip for construction. Spilt Bobcat employed Gregory Barnes to perform services at the site. Project 11 The RTA was the principal contractor for the project at the site located at the intersection of Epping and Herring Roads at Macquarie Park NSW. The project formed part of improvement works for the Bus corridor 9, one of two corridors that connect Parramatta with the City. 12 The works for the Project included the following: Extension of the double turning bay from Epping Road into Herring Road by approximately 300 metres; and Narrowing of the existing grassed median strip. 13 The grassed median strip was approximately eight metres wide and divided six lanes of traffic: three eastbound lanes and three westbound lanes. 14 On 8 April 2008 the RTA obtained Road Occupancy Licences No 132151 and 132152 to permit them to undertake the road works at Epping Road. The licences permitted the closure of one lane in both eastbound and westbound directions, between 10:00am and 3:00pm weekdays and 8:00pm to 5:00am on weekends from 1 and 31 May 2008. Incident 15 On 1 May 2008 at approximately 7:00am, immediately prior to the commencement of works, workers closed lane 3 of Epping Road. Lanes 1 and 2 were left open for morning traffic. The normal speed limit along Epping Road is 80km. This speed limit remained enforced whilst works were being undertaken. 16 Water filled safety barriers were installed at the site, commencing at the intersection of Herring and Epping Roads and ran in an eastbound direction for a distance of approximately one kilometre. The water filled safety barriers were tied together and separated the median strip from Epping Road. 17 Prior to the incident there had been significant rain in the area and as such the services of Online Concrete Sawing were not required. Ratko Ivanovski requested that Kevin Finnemore remain on site to assist with work which was outside the scope of his contracted duties. 18 Ratko Ivanovski did not communicate the request for additional work to the management of Online Concrete Sawing and as such Online Concrete Sawing had no knowledge of what work Kevin Finnemore was undertaking prior to the incident. 19 Emilio Spinozzi, Adamo Spinozzi and Frank Antoniazzio commenced work at approximately 9am. Emilio Spinozzi was operating the excavator to excavate the existing median strip. Adamo Spinozzi together with Frank Antoniazzio were operating two prime movers with dog trailers to transport the excavated material away from the site. 20 David Ball was spotting for the excavator operator, cleaning the jersey curb and occasionally crossing the water filled safety barriers into the closed lane to move orange safety cones so as to allow prime movers to enter the closed lane. 21 Immediately prior to the incident, Adamo Spinozzi's prime mover licence plate TRA 025 and the attached dog trailer licence plate U10129 were parked stationary in lane 3 adjacent to the water filled safety barriers whilst being filled up with excavated material from the median. 22 Kevin Finnemore was assisting Ratko Ivanovski move the Geotech material along water filled safety barriers and was cleaning dirt off the road in lane 3. Kevin Finnemore was holding the material at one end and Ratko Ivanovski holding the material at the other. Ratko Ivanovski was standing on the water filled barriers dragging the Geotech material uphill in a westerly direction whilst Kevin Finnemore was manoeuvring this to at the opposite end. 23 Geotech was used at the site primarily to protect the white and orange water filled safety barriers from dirt getting caught in the crevices of the barriers. The Geotech material was estimated to be approximately 20 metres in length similar to the combined the length of the prime mover and dog trailer. The weight of the material is unknown. 24 Emilo Spinozzi used the excavator to move the excavated material from the median strip into the trailer attached to the prime mover operated by Adamo Spinozzi, so that it could be removed from the site. At some time during this process Adamo Spinozzi left the cabin of the prime mover to check on the gauge of the trailer. The gauge is located on the side of the trailer and indicates when the trailer is at capacity. 25 When the prime mover was at maximum capacity, Adamo Spinozzi advised Emilio Spinozzi he was going to depart. Adamo Spinozzi observed Kevin Finnemore in lane 3 as he moved toward his prime mover and he waved to Kevin Finnemore as a signal for him to stop and made eye contact with him. However there was no verbal communication to advise Kevin Finnemore that he was to depart. 26 Around this time Frank Antoniazzio entered the site in his prime mover and pulled up approximately five to ten metres behind the prime mover that was being operated by Adamo Spinozzi. Whilst Adamo Spinozzi's trailer was being loaded with excavated material Frank Antoniazzio observed Kevin Finnemore walk in front of his prime mover with a shovel in his hand and proceed around the side of Adamo Spinozzi's truck where he scooped up dirt which had fallen onto the road. Frank Antoniazzio then observed Kevin Finnemore walk down in an eastbound direction along the passenger side of Adamo Spinozzi's truck. 27 At approximately 1:00pm Adamo Spinozzi drove the prime mover away from the stationary position heading east bound on Epping Road. As he released the brakes and took to gear Adamo Spinozzi noticed a hard hat in the corner of his eye and heard a scrapping sound along the ground. 28 Emilio Spinozzi observed Adamo Spinozzi enter the cabin of the prime mover. He then commenced noting the truck times in the logbook taking his eyes off the prime mover and the closed lane. When he looked up he saw some boots on the road after the prime mover had driven off. He stepped up onto the barricade and saw Kevin Finnemore on the road. Emilio Spinozzi crossed over the water filled safety barricades to check on Kevin Finnemore and began dialling 000. 29 David Ball was spotting for the excavator operator only metres away from the incident. However he did not see Kevin Finnemore and was alerted to the incident by the screams of Emilio Spinozzi. Once he became aware that something had occurred he jumped the water filled safety barriers and went to Kevin Finnemore no longer than 10-15 seconds after the incident. When he reached Kevin Finnemore he checked his breathing and heartbeat and felt nothing. As there were pedestrians in the vicinity, David Ball grabbed the geotech material which was laying across the water filled safety barriers and covered Kevin Finnemore. 30 Ratko Ivanovski ran over to where Kevin Finnemore was laying on the ground. Gregory Barnes rang the Raymond Eaton the site supervisor to advise him of the incident than to call 000. 31 Raymond Eaton left the office and attended the incident site. A short time later ambulance and other emergency services arrived at the site. Systems of Work Prior to the incident RTA Traffic Control at Work Sites Manual 32 The 'RTA Traffic Control at Work Sites' manual, ("TCWS") Issue 1, dated September 2003, provided guidance for the implementation of safe working practices and traffic control measures with respect to traffic movement around works sites and entering/leaving works sites, prior to the incident. The RTA manual was mandatory on all RTA roadwork sites. 33 Section 2.3, headed 'Definitions', defined a Traffic Control Plan ("TMP") as: i. " A diagram showing signs and devices arranged to warn traffic and guide it around, past or, if necessary through a work site or temporary hazard. The TCP shall detail the location and lengths of all tapers, all pavement marking and delineators, any containment or safety fencing, flashing arrow signs, portable traffic signals, variable message signs, roadwork speed zones, pedestrian routes and any other devices required for guidance at the work or hazard site." 34 Section 2.3, headed 'Definitions', defined a Vehicle Movement Plan ("VMP") as: