Inspector Martin v Ridge Consolidated Pty Ltd - [2003] NSWIRComm 163 - NSWIRComm 1992 case summary — Zoe

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Inspector Martin v Ridge Consolidated Pty Ltd

[2003] NSWIRComm 163

Industrial Relations Commission (NSW)|1992-06-30|Before: Boland J, Fisher CJ, Cullen JJ

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1992-06-30

Before

Boland J, Fisher CJ, Cullen JJ

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Martin v Ridge Consolidated Pty Ltd [2003] NSWIRComm 163 PROSECUTOR Inspector Ken Martin PARTIES : DEFENDANT Ridge Consolidated Pty Ltd FILE NUMBER: IRC 1281 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under s 15 (1) of the Occupational Health and Safety Act - Plea of Guilty - Civil construction - Employee injured whilst attempting to stop unmanned moving water tanker - Hand brake on truck defective - Faulty hand brake known for approximately two months prior to accident - Defendant had no system for actioning reported defects of plant or equipment - Foreseeability - Simple and straight forward means to avoid risk - Contrition - Early guilty plea - Conviction - Penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No 1214 of 1990, 30 June 1992) Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 Tyler v Sydney Electricity (1993) 47 IR 1 CASES CITED : Wong v Melinda Group Pty Ltd (1998) 82 IR 118 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Ken Martin) v Russell Larkham [2003 NSWIRComm 31 WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 HEARING DATES: 03/11/2003 DATE OF JUDGMENT: 06/12/2003

[8]

5 An agreed statement of facts was tendered by the prosecution. The statement described the incident as follows: 8. At all material times the defendant owned an Isuzu water tanker truck, Registration Number QYX-196 ("the truck"). The truck carried large volumes of water for spraying freshly graded sections of road. The truck weighed approximately 5.5 tonne unladen and approximately 13.5 tonne when it was full of water. 9. On 15 March 2000, Mr Worts was asked to drive the truck by Mr Alan Sherwood, an operator employed by the defendant. This was the first time Mr Worts had ever driven the truck, however Mr Worts held the relevant C Class drivers licence which licenced (sic) him to drive road trains, dump trucks, rollers and water trucks. 10. Mr Sherwood had shown him how to turn the water on and fill it up. Mr Worts stated that he could not recall whether or not he was informed by Mr Sherwood that the handbrake was not working on the truck, although he was told there was some "gear trouble". Mr Sherwood states that he told Mr Worts that the park brake did not work and that he would need to place the truck in low gear and shut the engine down. 11. At first Mr Worts was working at the top of the hill. Mr Sherwood was at the bottom of the hill in a Leyland water tanker. He was watering an area which was being rolled by Patrick Hunt, a roller operator employed by the defendant. Mr Sherwood then reversed back and his left rear wheel went into some soft material and he did not have the power to pull the Leyland water tanker back out. 12. Mr Worts received a call from a grader driver and drove the truck to the site and sprayed the gravel. Mr Worts parked the truck slightly uphill from Mr Sherwood's vehicle, stopped the truck, and exited the truck to walk down to Mr Sherwood. Mr Worts said he applied the handbrake prior to getting out of the truck. Mr Worts did not follow instructions that Mr Sherwood says he gave to Mr Worts as set out in paragraph 10 above and did not engage low gear and shut the engine down. Mr Worts parked on a slope and did not place chocks under the wheels of the truck. 13. As Mr Worts and Mr Sherwood were talking, Mr Hunt looked up and saw the truck starting to roll downhill towards the driver's side of Mr Sherwood's truck. Mr Hunt called out to both men to "look out". Mr Worts thought he saw the truck heading towards the highway traffic. 14. Mr Worts ran to the truck, opened the door, reached in and grabbed the steering wheel with one hand and pulled the handbrake on. Mr Worts thinks the handbrake came straight out. The truck collided with Mr Sherwood's vehicle. Mr Worts was caught in the door. He then fell between the two vehicles on the ground. 15. In the subject accident Mr Worts suffered a dislocated hip and lacerations to his scrotum and groin area.

[9]

6 According to the agreed statement of facts subsequent investigations into the incident revealed the following: 16. Prior to the accident on 15 March 2000, it was the Defendant's procedure that, prior to operating a vehicle, all drivers on site completed an Operator Daily Pre-Start Checklist. This involved placing a tick or a cross on the checklist which listed such items to be inspected as brakes, fuel, park brake, horn, seatbelts, airconditioning and tyres. The checklist was collected at the end of each week by Russell Larkham, the defendant's works foreman, who signed the checklists and placed them in the tray of the site engineer (Brent Backhouse). The site engineer filed the checklists away. 17. Mr Larkham stated that he signed the checklists for receipt only, and that it was not his job to report any defect on the checklist. Mr Larkham stated that he had the authority to stand plant down if he thought it was severely defective, or at least to bring it to someone's attention. 18. The Defendant's foreman running the plant, Garry Maybury, was responsible for arranging major repairs to any plant and equipment and his responsibility would have extended to the defective handbrake. 19. The Defendant's drivers completing the checklists had recorded a defective handbrake on the truck on the checklist for a period of approximately two (2) months prior to the accident from about 5 January 2000 onwards. 20. Mr Larkham was aware that the hand brake on the truck was faulty a few weeks prior to the accident. He did not think it was very important as the truck could still be operated without the handbrake working. The truck was used almost everyday for the previous three (3) months during work hours. Other employees of the Defendant, in particular, Mr Gary McInnes and Alan Matthewson were also aware that the handbrake was faulty and had operated the truck with a faulty handbrake over a period of several months. Mr McInnes removed the pin from the handbrake stem and placed it in the ash tray to make it clear to operators that the handbrake was inoperable. Mr McInnes and Mr Matthewson parked the truck by turning it off and placing it in low gear to prevent it rolling when parked. 21. Mr McInnes had indicated on the Pre-Start Checklist that the handbrake was defective. Mr Sherwood had also indicated on the Pre-Start Checklist for the previous two weeks prior to the accident that the handbrake was defective. 22. The Defendant's previous operator and plant fitter, Mr Garry McInnes, informed several people of the defective handbrake. Steps had been taken to repair the handbrake, however the required cable was not available. … 24. The Isuzu water truck was not tagged or immobilised because Mr Larkham did not consider the defect was essential to the safe operation of the truck, and did not see a danger to any person arising from the continued operation of the truck. Accordingly, he did not bring the defect to the attention of Mr Maybury for Mr Maybury to arrange its repair and did not stand down the truck. … 26. An inspection of the truck following the accident revealed that the pin connecting the handbrake cable had been disconnected. As such, the handbrake shaft extended to its maximum and, without resting on any position, it then fell to the floor. 27. Following the accident the defendant's Project Manager, Mr Thomas Rayner, carried out an investigation of the accident. Mr Rayner also directed that the truck be removed from service. Immediately after the accident the Defendant revised all checklists to ensure persons were aware of their responsibilities and the Defendant's procedures regarding defective plant. The revised Pre-Start Checklist introduced by the Defendant provided for the inclusion of comments and the recording of repairs required and the completion of such repairs.

[23]

20 As to general deterrence, the important consideration is to set the penalty at a level that will realistically operate as a deterrent but not so high as to be oppressive. As to specific deterrence, I note the two relatively recent convictions against the defendant but they do not indicate an habitual offender or a company that does not take its occupational health and safety responsibilities seriously. The defendant has been in operation for 20 years and has only two recorded convictions against it in an industry that may be regarded as dangerous. In relation to the two previous convictions, I note that the defendant took proper steps to avoid any recurrence of the risks to safety that attracted the penalties in those cases. Further, it is clear that the defendant has taken the necessary steps to avoid a recurrence of the accident that is the subject of these proceedings. In this respect the "Operators' Pre-Start Daily Checklist" was revised to provide explicitly for action to be taken in respect of any notified issues, to incorporate a weekly summary of the required repairs and the date the repair is to be completed; a toolbox meeting was held on 17 March 2000 and each worker was instructed to ensure ownership of responsibilities in relation to the checklist, and to ensure that each employee properly understood its operation, and to reiterate the policy that no employee is to attempt to board a moving vehicle or plant, but to let it go; new operators are to be given detailed instruction on the fault procedure and both individual and streamlined responsibilities in relation to defective plant and equipment; a complete revision of all plant and equipment on site was undertaken to ensure all other plant and equipment was in a safe working order, and any unsafe plant was stood down until safe. I do not consider there is any need for the penalty to reflect a substantial element in relation to specific deterrence but the defendant will need to be most vigilant in ensuring that any occupational health and safety plans meet the purpose for which they are designed and employees are regularly reminded in a meaningful way as to what is required of them in relation to occupational health and safety.