Inspector Russell Webb v Nowra Truck & Farm Equipment

Inspector Russell Webb v Nowra Truck & Farm Equipment - [2003] NSWIRComm 340 - NSWIRComm 2003 case summary — Zoe

PARTIES : DEFENDANTS Nowra Truck & Farm Equipment (Holdings) Pty Limited t/as Banoon Pastoral Co Brunning Investments Pty Limited t/as Banoon Pastoral Co Nubley Bros Service Pty Limited t/as Banoon Pastoral Co FILE NUMBER: IRC 3713, 3714, 3715 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 15(1) of Occupational Health and Safety Act - Rural industry - Plea of not guilty - Employee sustained fatal injuries when vehicle travelling in rolled over - Employee not wearing seat belt - Failure to provide safe system of work - Alleged failure to provide means of access to and egress from place of work under employers' control - Place of work - Failure to provide information, training, instruction and supervision - Whether casual relationship - Offence proven LEGISLATION CITED : Factories Shops and Industries Act 1965 (NSW) Occupational Health and Safety Act 1983 Australian Bronze Company Pty Limited v Ajaka (1970) 44 ALJR 155 Australian Iron and Steel Pty Limited v Luna (1968) 123 CLR 305 Dorman Long & Co v Hillier [1951] 1 All ER 357 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 1R 432 Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Insp Guillarte) (2001) 110 IR 57 CASES CITED : Hopwood v Rolls Royce Ltd (1947) 176 LT 514 Inspector Kenneth John Barnard v Rail Infrastructure Corporation [2001] NSWIRComm 255 Inspector Schultz v Leonard J Williams (Timber) Pty Ltd [2001] NSWIRComm 28 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 Rolland v United Glass Manufacturing Co Ltd [1959] SLT (Notes) 10 State Rail Authority (New South Wales) v Dawson (1990) 37 IR 110 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 HEARING DATES: 06/16/2003; 06/17/2003; 06/18/2003; 06/19/2003 DATE OF JUDGMENT: 10/17/2003

[14]

7 It was alleged by the Inspector that the defendants failed to ensure the health, safety and welfare at work of its employees, and in particular Raymond John Philpott, contrary to section 15(1). Each charge alleged that the defendant: [B]eing an employer at a rural property known as "Bundabindi" in the state of New South Wales ("the farm") on the 19 October 2000 DID FAIL to ensure the health, safety and welfare at work of its employees and in particular, Raymond John Philpott ("the deceased worker"), contrary to section 15(1) of the Occupational Health & Safety Act, 1983, in that the deceased worker sustained fatal injuries when, being a passenger in a Daihatsu four-wheel drive farm utility ("the motor vehicle") being driven by Peter Roy Simpson ("the driver") on the farm, the deceased worker was thrown from the motor vehicle when it was involved in an accident involving it overturning a number of times by reason that: (a) The defendant failed to provide and maintain a safe system of work in that: (i) The work being carried out at the particular time and place involving the use of the motor vehicle in the circumstances was unsafe. (ii) The practice of the defendant's farm employees, including the deceased worker, travelling in farm vehicles when unrestrained by seatbelts, was unsafe. (iii) The route taken by the motor vehicle to carry out the work in the circumstances was unsafe. (iv) The route taken by the motor vehicle to access a flood gate/flood fence area instead of the defined bulldozed track was unsafe. (b) The defendant failed to provide and/or maintain a means of access to or egress from a place of work under its control, to wit an area on the other side of the hill from where the said vehicle overturned, that was safe and without risk in that: (i) The route taken involved the motor vehicle being driven across the slope of a hill. (ii) The slope of the hill at the route taken by the motor vehicle had a gradient which rendered it unsafe to traverse in the prevailing conditions. (iii) A planned track on the side of the hill where the accident occurred to provide safe access to the flood gate/flood fence area on the other side had not been constructed at the date of the accident. (c) The defendant failed to provide such information, training, instruction and supervision in relation to the work involving use of the motor vehicle as may be necessary to ensure health and safety in that: (i) The driver had not received accredited instruction and assessment in the safe operation of four wheel drive vehicles under varying conditions and situations. (ii) No instruction or training was provided to its employees, including the deceased worker, in relation to the wearing of seatbelts at all times where practicable when engaged in farm work from motor vehicles. (d) The defendant failed to take such steps as were necessary to make available in connection with the use of the motor vehicle on the spur of the hill where it overturned adequate information about the use for which the motor vehicle was designed and about conditions necessary to ensure that when put to that use the motor vehicle would be safe and without risk.

[38]

28 The evidence of Detective Sergeant Baines and Senior Constable Ryan supports my opinion of how the accident occurred. I have no reason to question or doubt their evidence. Detective Sergeant Baines expressed the opinion that a number of factors combined to cause the vehicle to overturn: Q. Can you tell his Honour how all those factors associated with the observation by way of physical examination and so forth, come together in your opinion to play a role in what occurred in terms of the vehicle rolling down the hill? A. Yes. It was my opinion that there were a number of matters which combined to cause the collision. This included the direction of travel of the vehicle across the gradient, the nature of the surface the vehicle was travelling across and the presence of the depression in the surface of the hill that the vehicle as I indicated earlier entered with the front left wheel. … Q. Just in terms of the forces that were acting on the vehicle at the point that it began the process of tripping, as you have described it, can you just explain to his Honour the forces in terms of gravity and centre of gravity that were acting on the vehicle? A. There would have been a significant transfer of weight because we have a 21 degree gradient. We would have already had a lot of weight on the left side of the wheels because he is moving across the hillside, but what would have been the unexpected dropping of the front of the vehicle into this little wash out. So that would have created more weight, particularly on the left front of the vehicle and that weight, with the damp, wet conditions, would have caused a lateral slide, lateral being in this case from right to left and weight transfer, and in conjunction there would have been instability by the very nature of the fact that initially there would have been only three wheels until it toppled into the actual hole and the left wheel dug in and then would have had more weight, particularly focused on the left front corner of that car.

[95]

76 In Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Insp Guillarte) (2001) 110 IR 57 at pars [58] and [59] the Full Bench made a number of observations regarding the obligations on employers to provide adequate training in order to equip employees to safely carry out their work: [58] The extent and standard of training provided by employers to their employees to ensure satisfaction with the requirements of the Act will depend upon the nature of, and circumstances under which, work is performed. It will not, therefore, necessarily require the provision of classroom-based instruction or the provision of substantial work manuals. However, in all cases, adequate training will necessarily involve the provision of such information and instruction as will fully equip employees to safely perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of or relating to the performance of such work. In short, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training afforded them (and re-training of employees, where necessary, to ensure the continued sufficiency of such education). [59] In this case, we are satisfied beyond reasonable doubt that the training provided to Mr Ingram was not adequate to ensure he was not exposed to risks to his health and safety in relation to the control of vehicular movements onto and off the worksite. The training received by Mr Ingram over the years he had been working for the appellant was solely informal, ad hoc training and provided directly by Mr Genner. The training was not documented and the appellant's procedure for controlling vehicles entering and leaving a worksite were not recorded or refined. In our view, it is proper to conclude there was not sufficiently systematic or comprehensive training so as to ensure that Mr Ingram, who was left in control of the worksite, was sufficiently trained to react to changing circumstances and at the same time to ensure the site remained safe.

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