Inspector Ken Kumar v Top Container Transport Pty Ltd

Inspector Ken Kumar v Top Container Transport Pty Ltd - [2005] NSWIRComm 203 - NSWIRComm 2004 case summary — Zoe

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1 Top Container Transport Pty Ltd (In Liquidation) ("the defendant") has been charged with one offence under s8(1) of the Occupational Health and Safety Act 2000 ("the 2000 Act"). 2 The offence under s8(1) of the Act alleges a failure by the defendant as an employer at 16 Childs Road, Chipping Norton on 26 November, 2001, to ensure the health, safety and welfare at work of all its employees, in particular, Maxwell Cook. 3 The offence under s8(1) 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) The Defendant 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 the health, safety and welfare at work of all the employees of the Defendant, in particular Cook, 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 that an employee was not exposed to the risk of the crates falling on the employee. (ii) failing to provide such training and supervision as was necessary to ensure the safety of all the employees of the Defendant, in that the Defendant: (i) failed to supervise employees 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 the crates. (f) As a result of the said failures, Maxwell Cook was fatally injured.

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8 A Statement of Facts was tendered by the prosecutor in the ex parte proceedings. In it, Francis James Burn ("Mr Burn") was nominated as the defendant's sole director, and, Donald William Steel ("Mr Steel") as the General Manager. According to the document, the defendant employed approximately twenty workers to work at the premises at 16 Childs Road, Chipping Norton, New South Wales ("the premises"). A co-defendant, Keralex Pty Limited (In Administration) ("Keralex") occupied the premises and was responsible for the operation and management of a warehouse facility for the general cartage, storage and distribution or products including Stemcor steel products. It also operated a Daewoo forklift truck model no 252-2, serial number 11-00412 at the premises ("the forklift"). 9 Maxwell Cook ("Mr Cook") was an employee of Top Container on the date of the alleged offence, 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. 10 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. 11 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"). 12 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

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19 The evidence set out and relied upon above to establish that the defendant was an employer, also establishes to the requisite standard, that as at 26 September, 2001 the defendant employed a number of workers at the premises including Mr Cook. The evidence also establishes that on that particular day Mr Cook was at work at the premises storing and packing the crates using the forklift. Third element: the defendant failed to ensure safety. Whether there was a risk to safety 20 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. 21 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 necessary supervision to ensure the crates were safely stacked and failed to train supervisors to identify risks associated with the stacking of the crates. 22 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.) 23 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 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. 24 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

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29 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. 30 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. 31 The references to "the company" are not helpful in the ascertainment of which corporate defendant was in breach of a failure as alleged at a particular time. In circumstances where Mr Burn was the sole director however of both corporations, and, where on the evidence Mr Burn does not appear to delineate between the functions, at least in so far as safety is concerned, of each corporate defendant, the references may be taken to mean either Keralex or Top Container. 32 The 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 s8(1) of the Act to provide a safe system of work. Whether there was a failure to supervise employees to ensure the crates were stacked safely.

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