Larkin v Rice Growers Co-op. Ltd - [2002] NSWIRComm 171 - NSWIRComm 1994 case summary — Zoe

NSWNSWIRComm

Larkin v Rice Growers Co-op. Ltd

[2002] NSWIRComm 171

Industrial Relations Commission (NSW)|1994-02-25|Before: Boland J, Schmidt J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1994-02-25

Before

Boland J, Schmidt J

Source

Original judgment source is linked above.

Judgment (69 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Larkin v Rice Growers Co-op. Ltd [2002] NSWIRComm 171 PROSECUTOR Inspector Stuart Larkin PARTIES : DEFENDANT Rice Growers Co-operative Limited FILE NUMBER: IRC 3994 of 2001 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Section s15(1) of Occupational Health & Safety Act - Plea of guilty - Employee struck by forklift truck - Penalty imposed Co-operatives Act 1992 LEGISLATION CITED : Fines Act 1996 Occupational Health and Safety Act 1983 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610, (2000) 99 IR 29 Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Fletcher Construction Australia Ltd v WorkCover Authority of NSW (Inspector Fisher) (1999) 91 IR 66 Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of (NSW) (Inspector Glass) (2001) 106 IR 342 Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 R v Thompson, R v Houlton (2000) 49 NSWLR 383 CASES CITED : Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Ltd v WorkCover Authority of NSW (1998) 80 IR 326 Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446 WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited (unreported, Schmidt J, 25 February 1994) WorkCover Authority of New South Wales (Inspector Riley) v Broken Hill Pty Ltd (1998) 83 IR 427 WorkCover Authority of New South Wales (Insp Martin) v Byrne Civil Engineering Constructions Pty Ltd (No 2) (2001) 109 IR 347 WorkCover Authority of New South Wales (Insp Benbow) v Coverquip Pty Ltd (2001) 106 IR 258 WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of NSW (2000) NSWIRComm 179 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 HEARING DATES: 05/08/2002 DATE OF JUDGMENT: 08/09/2002

[13]

(a) Forklift trucks were to be driven at about walking pace; (b) Forklift drivers were to sound the forklift truck's horn before putting the vehicle in motion; and (c) Forklift drivers were to sound the forklift truck's horn on approaching an intersection and in circumstances where vision was limited. 6.6 Mr Wells was working in the mill. He left the mill and walked to the amenities block. The walkway was straight across from the flour mill door to the amenities side of the store. 6.7 At the time of the accident the raw material store was being used to store 1.8t and 1.2t 'bulky bags' of products. These 'bulky bags' were 1.7m and 1.2m high respectively and at that time were stacked 2 high. Pallets of bagged flour were also stored to a height of approximately 4m. 6.8 A large amount of product was stored in the material store. Pathways were only wide enough for the forklift to get through, especially at the intake end of the store. 6.9 Storage areas, passageways and walkways in the raw material store had not been marked to separate forklift traffic from pedestrian traffic. 6.10 Accessways used by forklifts and pedestrians at the premises were not kept clear of materials and other obstructions in accordance with the Defendant's general safety instruction handbook. 6.11 At the time of the accident the forklift driven by Mr Bernardi had loaded product into the mill intake area and was returning to the main warehouse. The forklift driven by Mr Casey was reversing out of the Finished Product warehouse into the raw material store. 6.12 On Mr Wells' return from the amenities block Mr Wells looked to the left in the direction he thought Mr Casey's forklift was operating and saw that forklift. He then stepped out into the driveway and was struck by Mr Bernardi's forklift which was coming from the opposite direction. Mr Bernardi did not sound his horn on approaching the walkway in accordance with the defendant's safe working practice for forklift operations. Mr Wells did not look to his right before stepping out into the driveway.

[56]

12 In WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264 at par 19 and after referring to Benbow v Converquip Pty Ltd [2001] NSWIRComm 85 at par 42, WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at pp 185-187 and Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 at par 82, Hungerford J summarised the proper approach to be taken to sentencing as follows: In summary, then, the proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act , namely, the establishment of safe standards and the protection of the workforce. 13 In considering the culpability of the defendant in this case, it is to be observed that passageways and walkways in the raw material store had not been marked to separate forklift traffic from pedestrian traffic; access ways used by forklifts and pedestrians were not kept clear of materials and other obstructions; a large amount of material was stored in the store, some of it at heights of between 2.4 to 4 metres; pathways were only wide enough for the forklift to get through, especially at the intake end of the store. In other words, the store was crowded to the extent that materials obstructed access ways; vision was impaired and there was an inadequate system in place to ensure that forklift traffic and pedestrian traffic were separated.