Inspector Ken Kumar v Keralex Pty Limited

Inspector Ken Kumar v Keralex Pty Limited - [2005] NSWIRComm 199 - NSWIRComm 2005 case summary — Zoe

[13]

3 The offence under s8(2) has been particularised in the Application for Order in the following way: "(a) The Defendant, at all material times, was a corporation responsible for the operation and management of a warehouse facility for the general cartage, storage and distribution of steel and ceramic products located at 16 Childs Road, Chipping Norton, in the State of New South Wales ("the premises"). (b) Top Container Transport Pty Ltd [ACN NO: 092 794 959], ("Top Container") at all material times, employed a number of workers, including Maxwell Cook ("Cook"), to work at the premises. (c) The Defendant, at all material times operated plant, namely a Daewoo forklift truck, model no 252-2 and serial no 11-00412 ("the forklift"), at the premises. (d) On 26 September 2001, as part of his duties, Cook used the forklift to stack steel crates containing stainless steel welded pipes ("the crates"). The crates were constructed of steel and were approximately 6200mm long, 600mm wide and 570mm high. The weight of a fully laden crate was approximately 1400kg. (e) The defendant failed to ensure that people (other than the employees of the Defendant), in particular Cook, were not exposed to risks to their health or safety arising from the conduct of the Defendant's undertaking while they were at the Defendant's place of work, by: (i) failing to provide safe systems of work in that the Defendant: (i) failed to undertake a risk assessment that identified the maximum number of crates that could be safely stacked to ensure stability; (ii) failed to provide and maintain a system of work that ensured people (other than employees of the Defendant) were not exposed to the risk of the crates falling on the person. (ii) failing to provide such training and supervision as was necessary to ensure the safety of all people (other than the employees of the Defendant), in that the Defendant: (i) failed to supervise people (other than the employees of the Defendant), in particular, to ensure the crates were stacked in a manner that was safe and without risk of injury; (ii) failed to train supervisors in the identification of risks associated with the stacking of crates. (f) As a result of the said failures, Maxwell Cook was fatally injured."

[31]

11 A Statement of Facts was tendered by the prosecutor in the proceedings. In it, Francis James Burn ("Mr Burn") was nominated as the defendant's sole director. According to the document, the defendant occupied premises at 16 Childs Road, Chipping Norton, New South Wales ("the premises"). A co-defendant, Top Container Transport Pty Limited (In Liquidation) ("Top Container") employed approximately twenty workers to work at the premises. Mr Burn was also the sole director of Top Container. 12 The defendant was responsible for the operation and management of a warehouse facility for the general cartage, storage and distribution of products including cooking oil and products. At the time of the alleged offence, it handled Stemcor steel products. It also operated a Daewoo forklift truck model no. 252-2, serial number 11-00412 at the premises ("the forklift"). 13 Maxwell Cook ("Mr Cook") was an employee of Top Container on the date of the alleged offences, that is, on 26 September 2001. On that day, he used the forklift to stack steel crates containing stainless steel welded pipes ("the crates"). The crates were approximately 6200mm long, 600mm wide and 750mm high. the weight of a fully laden crate was approximately 1,400 kilogrammes. 14 On 26 September 2001, twelve crates had been delivered to the premises from R&H Transport upon instructions from Stemcor (A/SIA) Pty Limited. Mr Cook commenced work that day at about 10am. He was assisted by another Top Container employee, Mark Lomas ("Mr Lomas") with the unloading and stacking of containers of nuts and bolts using the forklift. 15 The crates were delivered to the premises at around lunchtime. Mr Cook unloaded the crates using an overhead crane and then stacked the crates using the forklift. He stored them by stacking them one on top of the other, six crates high ("the stack"). 16 Mr Lomas finished work that day at about 2.30pm. Thereafter, Mr Cook worked alone without supervision stacking the crates using the forklift. At about 3.40pm, while Mr Cook was operating the forklift near the stack, the stack collapsed and one of the crates fell on top of the forklift. The force of the collapse of the stack on the forklift resulted in Mr Cook suffering fatal injuries. Consideration

[56]

26 Section 10(4)(a) of the Act provides some assistance in determining the extent to which a person can exercise control of the premises in order to fall within the terms of s10(1). Section 10(4)(a) relevantly provides: "In this section, a person who has control of premises... includes: (a) person who has only limited control of the premises... (in which case any duty under this section applies only to the matters over which the person has control)...." 27 The element of control in the precursor section to s10(1), namely s17(1) of the Occupational Health and Safety Act 1983 ("the 1983 Act"), was discussed by the Full Bench in McMillan Britton and Kell Pty Limited v WorkCover of New South Wales (Inspector Blake) (1999) 89 IR 464. After considering various dictionary definitions, and concluding that the word "control" has a wide meaning, the Full Bench referred to the High Court decision in Commissioner of Taxation (Cth) v Australia and New Zealand Bank Group Pty Ltd (1979) 143 CLR 499, where it was held (at 533): "The content of 'control' is somewhat different from that of 'custody'; however, both are "wide enough to include many types of possession which are not commensurate with full ownership" ( Johnston Fear & Kingham v The Commonwealth (1943) 67 CLR 314 at 324, per Rich J). It is difficult to ascribe a precise meaning to 'control' in s 264 as the content of the word is normally dictated by its context and can vary from sole absolute dominion over the object 'controlled' to 'something' weaker than restraint, something equivalent to regulation' ( Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 385 , per Dixon J). Although the use of the composite expression 'in his custody or under his control' does not assist us in determining the precise limits of the meaning of 'control', it does evidence a legislative intention to employ the words in their widest sense." 28 The Statement of Facts tendered against Keralex by the prosecution in the ex parte proceedings states that Keralex occupied the premises and was responsible for the operation and management of, "a warehouse facility" for the general cartage, storage and distribution of products, at the date of the offence. Mr Burns, the sole director of both Keralex and Top Container, was, according to the Statement of Facts, "ultimately responsible for all systems of work and work methods employed by Keralex and Top Container" (at [8], [9]).

[58]

30 Mr Crowley in his second interview (31 July, 2003), which formed part of the brief of evidence, described himself as the Sydney manager of Burnsall Haulage on 26 September, 2001. He described Burnsall Haulage as a "division" of Keralex and said, he was employed at that time by Top Container. Later in the interview he said he understood that Burnsall Haulage was the trading name of Keralex. In his first interview (13 November, 2001) he described the main operations at the premises as "container cartage, container unpack, storage and distribution and general cartage. There is also interstate and intrastate transport". He said Keralex acted as a third party warehouse for customers, for example tile and steel importers and food importers. In his second record of interview he said Keralex sent out purchase orders, "or any verbal orders" using the name Burnsall Haulage. 31 Various documentation contained in the brief of evidence in existence prior to 26 September, 2001 describes Burnsall Haulage as a division of Keralex. One such document dated 17 September, 2001 outlines a disciplinary code to be followed by staff "employed by Burnsall Haulage" at the premises. Another document, which is undated (but which, according to Mr Steel, was written in October 2001) entitled "Burnsall Haulage Company Profile" states in its opening paragraph: "Burnsall Haulage is part of a private company Keralex Pty Ltd established and developed into a highly successful and reputable organization by Frank Burn. The primary objectives of the company are to provide service reliability and customer satisfaction through the use of a large and diverse fleet of company vehicles and experienced personnel, along with a base of well established subcontractors. Recent business acquisitions and company relocations have further provided the platform for Burnsall Haulage to continue to achieve first class, benchmark results within the transport industry." 32 The document then proceeds to list the services provided by Burnsall Haulage and the equipment it owns. 33 Mr Crowley was working in his office at the premises typing up quotations when Mr Cook was fatally injured on 26 September, 2001. 34 From this review of the available evidence it can be established that Keralex, although not the owner of the premises, and not the employer of persons who worked at the premises, nevertheless co-ordinated the business activities of the premises which included the unpacking and storage of goods delivered to the premises. Although the evidence is not sufficiently clear to determine precisely the delineation of functions between Keralex and Top Container for the purpose of assessing the degree of control exercised be each of those entities, it is not necessary for the purposes of section 10(1) to find that the defendant had exclusive or even predominant control of the premises at the relevant time. The duty under s10(1) to ensure premises are safe extends to persons who have only limited control of the premises, and, where the evidence establishes this, the duty extends only to those matters over which the person has control: s10(4)(a). 35 I therefore find beyond reasonable doubt that Keralex had control of the premises on 26 September, 2001 because it was coordinating, among other activities, the unpacking and storage of goods delivered to the premises. This was the precise activity in which Mr Cook was engaged at the time of his fatal accident. The premises were used by people as a place of work.

[60]

38 The limits of the duty under s10(1) to ensure safe premises are set out in s10(3) of the Act. Under s10(3) the duties of a person in relation to ensuring safe premises under s10(1) do not apply to premises used only by employees of the person; or, to premises occupied only as a private dwelling. The duties however, extend to the means of access to or exit from a place of work, but, only apply if the premises is controlled in the course of trade, business or other undertaking (whether for profit or not) of the person. 39 An examination of the available evidence referred to above on this aspect of the charge discloses that: (i) the premises was used by employees of Top Container; (ii) the premises was a warehouse facility used for the delivery and storage of goods, which was a business activity conducted by Keralex; (iii) the particular activity engaged in by Mr Cook at the time of the accident was one taking place inside the premises; (iv) Keralex had control of the premises in the course of its business, namely, the coordination of delivery and storage of goods. 40 I turn now to consider whether the defendant failed to ensure the premises on 26 September, 2001 was safe. 41 There is no evidence to suggest that there was anything about the physical premises that was unsafe, rather, the activity being conducted on the premises by Mr Cook on 26 September, 2001 was, the prosecutor alleges, unsafe, because no systems of work, and no training, instruction or supervision were provided to ensure the safety of people at work on the day. 42 Many of the cases under s17(1)(a) of the 1983 Act, the predecessor section to s10(1), have dealt with the particular aspect of whether a premises is unsafe by considering whether the physical premises or part of the physical premises was unsafe or whether something attached to or connected to the premises rendered those premises unsafe. 43 Staunton J in Rodney Dale Morrison v Eureka Opal Pty Limited [2005] NSWIRComm 80, considered an offence brought under s17(1)(a) of the Act where the premises was an opal mine in which part of the roof collapsed. 44 In Rodney Morrison v Akula Pty Limited formerly known as Raise Bore Australia Pty Ltd [2004] NSWIRComm 41, another offence under s17(1)(a) of the Act, the risk arose from falling rocks from the top and sides of a mine shaft. 45 Inspector Maltby v Josef and Sons Pty Ltd [2003] NSWIRComm 336, dealt with an the offence under s17(1)(a) and concerned premises described as Kogarah Railway Station and adjoining area. The risk arose when an excavator was operated at the premises close to a charged gas supply line. 46 In Inspector Gabrielle Belley v Rail Infrastructure Corporation [2001] NSWIRComm 323, another s17(1)(a) offence, the risk arose from a narrow railway track clearance which formed part of the premises at Trangie Rail Yard. 47 In WorkCover Authority of New South Wales v McDonald's Australia Limited and Another (1995) 95 IR 383, in which McDonald's was charged under s17(1)(a) of the Act, a worker was fatally injured when he came into contact with an exposed inner core of an electrical cable attached to kitchen equipment known as a clamshell grill. 48 Peterson J in WorkCover Authority of New South Wales (Inspector Buggy) v Newcastle Rail Corporation [2001] NSWIRComm 251 was confronted with a slightly different set of facts for determination as to whether the premises was unsafe under s17(1)(a) of the Act. In that case, a wharf in Newcastle Harbour was rendered unsafe by reason of certain work-related activities (the transportation of shipping containers) which made certain areas of the wharf dangerous areas in which to work: [11], [16]. 49 In the present proceedings, it is alleged that the activities of Mr Cook made the premises unsafe for persons, including himself, to use as a place of work, in accordance with s10(1), that is, the premises became unsafe on the evidence, when Mr Cook on 26 September, 2001 stacked the crates in such a way that there was a risk of the crates toppling over and injuring any person in the near vicinity. At the same time, the defendant was in control of the premises by virtue of its role as co-ordinator of the packaging and storage of goods in the premises. In my view, these facts support the finding that the premises were unsafe under s10(1). Whether there was a risk to safety 50 It remains to consider whether there was a risk to safety and, if so, whether the risk to safety arose by reason of some act or omission on the part of the defendant. 51 According to the Application for Order, the defendant failed to undertake a risk assessment that identified the maximum number of crates that could be safely stacked to ensure stability; and, failed to provide a system of work that ensured that people at the premises were not exposed to the risk of the crates falling on them. In addition, the defendant allegedly failed to provide training, supervision and instruction as was necessary to ensure the crates were safely stacked and to identify risks associated with the stacking of the crates. 52 According to Mr Lomas, on 26 September 2001, one load of Stemcor steel products arrived at the premises. The load consisted of some twelve crates. The crates were stacked on top of each other, six high, against the western wall by the side door. The crates were lifted by means of a forklift. Mr Cook stacked two stacks, six high. Mr Lomas says Mr Cook "would have" started at about 1pm and finished at 2.45pm. Mr Lomas saw Mr Cook stacking the crates at the beginning of the task. At that stage, the stack would have been "three high". A previous load of Stemcor steel products was stacked about a month before by Mr Lomas who stacked three stacks using a forklift and a crane. (Photographs forming part of the evidence taken by the prosecutor on 27 September 2001 confirm that the two stacks of crates stacked by Mr Cook on 26 September 2001 were stacked loose, six feet high.) 53 A report contained in the brief of evidence dated 26 February 2002 and headed "Burnsall Haulage FLT Accident" produces calculations of the angle of tilt required to cause overturning of stacked crates stacked six high. The report was commissioned by the WorkCover Authority of New South Wales and prepared by Senior Inspector Alan Kerruish. The width and height of the crates tested were identical to the dimensions of the crates which toppled over and fatally injured Mr Cook on 26 September 2001. An assumption is made for the purposes of the test that each case or crate in the stack is of equal weight and that the weight in each crate is evenly distributed. The report concludes that a six-crate high loose stack, with its centre of gravity at 3,300 mm above ground level, requires a 456' angle of tilt to cause it to overturn. 54 Although the report does not purport to duplicate the exact conditions existing at the time of the fatal accident, some reliance may nevertheless be placed on it as an indication that the six crates stacked in two loose stacks by Mr Cook at the time of the accident (as the evidence suggests) required only a small angle of tilt in order to give rise to a risk of toppling over. Whether there was a failure to undertake a risk assessment

[62]

58 The prosecutor also alleges against the defendant a failure to, "provide and maintain" a system of work that ensured that people at the premises were not exposed to the risk of crates falling on them. 59 I note in passing that the use of the word "maintain" is redundant if the evidence does not disclose to the requisite standard a failure to provide a system of work in the terms defined. If, therefore, what the prosecutor is alleging is really a failure to provide a system of work, it is not necessary to add the words "and maintain" to the application for order. 60 The evidence in relation to this particular, in summary, is: (i) Mr Burn was not aware of any system of work at the premises on 26 September 2001 in regard to handling clients' products. (ii) Mr Steel said he did not establish any work procedures at the premises because it was not his area of responsibility. He did not provide any advice to workers covering safe work practices; and, he was not aware of any systems of work at the premises for handling clients' products. (iii) Mr Crowley in his first interview told the prosecutor that at the time of the fatal accident, Mr Cook was working alone. Mr Cook started work at 10am, Mr Hayward was his supervisor. The storage of the Stemcor product was discussed by Mr Cook and Mr Lomas who agreed that the crates should be stacked four to five high. According to Mr Crowley "for some unknown reason the crates were stacked six high". In answer to a question, "Did the company put in place a safe system of work to handle steel crates?", Mr Crowley said, he didn't know whether there were any previous instructions. 61 The references to "the company" are not helpful in the ascertainment of which corporate defendant was in breach of a failure as alleged at any time. In circumstances however where Mr Burn was the sole director of both corporations and where on the evidence Mr Burn did not appear to delineate, at least in so far as safety is concerned, between the functions of each corporate defendant, the references may be taken to mean either Keralex or Top Container. 62 This evidence, considered as a whole, in relation to this second particular, establishes, beyond reasonable doubt that there was a failure on the part of the defendant, under s10(1) of the Act to provide a safe system of work. Whether there was a failure to provide training, supervision and instruction to ensure the crates were stacked safely

[63]

63 The available evidence in relation to the third particular is: (i) Mr Burn said in his interview that he didn't know whether Mr Cook was provided with information, instruction, training or supervision in the handling of Stemcor products (ii) Mr Steel said in his interview that he was not aware if employees of Top Container had been given any training in operating plant and equipment at the premises (iii) Mr Lomas in his statement dated 20 November, 2001 said that no instructions were given about how to stack the Stemcor steel products at the premises. Mr Lomas also said that he had received no training in the storing and packing of products at the premises (iv) Mr Hayward said in his statement dated 14 November, 2001 that Mr Cook was not given any instructions on how to store products in the premises; and, that "Burnsall Haulage" did not, to his knowledge, provide any training in relation to the safe storage and handling of steel products in the premises (v) Mr Crowley said that no specific instructions were given with regard to the handling and safe storage of the product. In addition, he did not know whether any information was provided to employees in relation to the safe handling and storage of the steel crates. Mr Cook, according to Mr Crowley was not given any specific instructions prior to commencing work on 26 September, 2001. In his second interview Mr Crowley said he was not provided with any occupational health and safety training at Burnsall Haulage, and, he was not provided with any guidelines, policies or procedures for the training of employees in the safe manner in which the steel containers were to be unloaded and stacked or stored in the premises. (vi) Mr Cook was working alone in the premises at the time of the fatal accident. 64 The evidence detailed above establishes beyond reasonable doubt the third particular contained in the application for order. Whether there was a failure to train or instruct employees in the identification of risks associated with the stacking of crates.

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