WorkCover Authority of New South Wales (Inspector Plowright) v Forgacs Engineering Pty Ltd

At all material times the Prosecutor was an Inspector duly appointed and empowered by Section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in the within matter.
At all relevant times the defendant, FORGACS ENGINEERING PTY LTD [ACN 000 019 616] (hereinafter "the defendant") was a company duly incorporated with its (sic) at 304 Pacific Highway, Hexham, in the State of New South Wales was an employer at Forgacs Floating Dock, Denison Street, Carrington in the State of New South Wales. The principal business of the defendant is to provide ship repair services.
At approximately 11.20am on 19 January 1998 Malcolm Dennis Phillips, aged 44 years, an employee of the defendant, died by drowning while carrying out his duties as a driver. On the said day Mr Phillips was attempting to drive a truck off the forward access ramp to Forgacs Floating dock when it rolled over and fell into Newcastle Harbour. Mr Phillips was trapped on the cabin and several men from the defendant and some naval personnel entered the water in an attempt to release him but this was unsuccessful due to the depth and poor visibility of the water.
At approximately 11.38 am. on the said day, WorkCover was notified by Police radio that an industrial accident had occurred at Forgacs Floating Dock in Denison Street, Carrington and that rescue was still being attempted. The Prosecutor attended the scene in the company of Inspector John Twynam-Perkins and carried out an inspection accompanied by David Wilde, Dockyard Manager, Fin Cairney, OH & S Officer, Peter Burgess, Joint Managing Director along with Senior Constable Scott Stevenson, Investigating Officer, Acting Inspector Malcolm Read, Duty Officer Newcastle, Senior Constable Karen Bush, Accident Investigation Unit, Detective Senior Constable Tony Ross and Detective Senior Constable Tim Hocking of Scientific Branch. The following observations were made: a. A ramp constructed of timber planks and supported by a steel gantry. b. The deck of the ramp consisted of hardwood timbers which measured 250 mm wide by 80 mm thick by 4 m long. These timbers were spaced approximately 25 mm apart, were laid at right angles to the gantry and were attached to the gantry by way of steel spikes. c. The ramp measured approximately 36.300 metres in length by 4 m in width. d. The ramp sloped downward toward the floating dock and, whilst facing the dock from the land, the ramp leaned slightly from right to left. e. On each side of the ramp running the full length of the ramp were kickboards made of lengths of 100 mm by 100 mm hardwood. f. Mounted on the left-hand side kickboard was a handrail system which was constructed of water pipe and supported at intervals by steel stanchions. A section of this handrail system was broken and hanging out over the water. g. Approximately 800 mm in from the left-hand side hand rail side of the ramp was attached another length of 100 mm by 100 mm hardwood which was used to define the pedestrian access way. h. At a point adjacent to the broken section of handrail, approximately 15.7 m away from the end of the ramp to the floating dock, were two white marks and slightly damaged timber on both the pedestrian guide and the left-hand side kickboard. This was stated by Mr. Fin Cairney to be the point where the truck rolled over into the water.
At approximately 12.02 pm a male, who was later identified as being Malcolm Phillips, was retrieved from the water by a Westpac Rescue Diver, Gregory Wiseman. The truck was retrieved from the water at approximately 4.20 pm and placed upside down on the floor of the floating dock. The hopper was retrieved at approximately 4.48 pm and placed adjacent to the truck. Prior to leaving the site on the said day Inspector Plowright checked the tyres of the truck and all tyres were inflated and the suspension of the truck appeared to be intact. The scene was preserved. At the time of retrieval the bin remained chained to the truck.
Inspector Plowright returned to the site on 20 January 1998 in the company of Inspector Twynam-Perkins and continued the investigation accompanied by Mr. Cairney. The truck and hopper appeared to be in the same position on the floating dock as they had been the previous evening. The following was observed: a. A white, right-hand drive, table top truck, with yellow and black NSW registration plates REM 294. On the near side window behind the passenger door was a registration label which had printed on it: Nissan REM 294 flat table 12 Jan 1999 Config 1R2 cabin. b. On the front of the cabin was a sign with the word FORGACS and on the driver and passenger doors were signs with the words FORGACS Engineering Pty Ltd. c. The cabin of the truck had been damaged with, inter alia, the roof of the cabin caved in near the centre, front and rear window missing, driver's side door window down and passenger side door window missing. d. The tray on the truck was made of steel chequer plate which was set down 20mm from the top of the 75mm edge rail that ran down each side of the tray and across the rear. e. The tray measured 6.080 metres long and 2.490 metres wide; at the front of the tray there was a backboard which stood 1.405 m high above the tray and was the same width as the tray. f. All the tyres of the truck appeared to be in fair to good condition and all were inflated; the pressure was unable to be obtained at the time of the inspection. g. The load attached to the tray of the truck at the time of the accident was a device for containing and feeding materials for shot blasting, known as a hopper bin. h. The hopper bin was identified with a faded "No 7" painted in white near the middle on the lower section of the bin on the side that supported an access ladder. i. The hopper bin was attached to a set of legs which created a stand and measured overall approximately 4.174 m high by 1.400 m square at the base. j. The hopper bin and stand configuration was constructed of steel and weighed approximately 1.1 tonne when empty. k. The hoper bin was a rectangular prism measuring approximately 1.088 m high by 1.376 metres square and was constructed of 12mm thick steel plate. l. At the base of the hopper bin tapered down to form an inverted square pyramid, this acted as a feed chute and measured approximately 1376 mm square at the tapering to 165 mm over a vertical distance of 730 mm. m. The hopper/chute configuration measured approximately 2 metres overall in height. n. The base of the chute was approximately 2.175 m above the base of the hopper stand. o. On top of the hopper there was a hinged lid which was constructed of steel angle and sheet metal. The angle was 40mm by 40mm by 5mm and formed the frame for the lid which was covered with 2mm thick sheet steel. The angle was turned down so that it fitted over the upturned angle that formed the top of the hopper bin. The lid was bent at almost 90 degrees near its centre. p. Welded to the hopper, one in each corner, were four 130mm square by 12mm thick by 3.350 metres long sections of angle which formed the legs on which the hopper was supported. q. On the base of each leg was welded a 150mm square section of steel which formed a foot for each leg. These feet were rusted and varied in thickness from 8mm to 12 mm depending on the age and degradation of the steel. r. On the side of the stand opposite the hinge point of the hopper lid was a vertical ladder consisting of ten individual rungs which were made of 25 mm diameter steel bar.
At approximately 7.00 am on 19 January 1998 a daily informal meeting had been held and attended by several employees of the defendant, to allocate work for the day. In attendance at this meeting on the said day were Dennis Waind, Rigging Supervisor, Chris Leismann, Supervisor, Brian Oliver, Rigger, Michael Pleash, Rigger, Mark Calvert, Rigger and Robert Curtis, Rigger. On this morning the task of moving a large hopper bin from the floating dock to another location in the dockyard was allocated to Michael Pleash and Mark Calvert, with Dennis Waind arranging for a driver to come over from another area for transport.
A hopper bin, at least three parts full with the product, copper slag shot, was hooked onto the crane, operated by Stan Kourousis, Crane Driver, by way of a four-legged hoisting chain set by Mr. Pleash and was then lifted over the wall of the floating dock and suspended while an 8 - 9 tonne tip truck was backed onto the forward access ramp. The hopper bin was then loaded onto the tipper truck but was again removed due to its instability and the lack of tie down points on the tipper truck. A suggestion by Russell Holz, Production Employee Class 2, to use the smaller tabletop truck was adopted. The tipper truck was removed from the ramp and the smaller tabletop truck was then reversed down onto the access ramp.
The hopper was placed onto the tabletop truck and then chained and dogged down by Holz, Pleash and Calvert. The weight was taken off the crane and the hoisting chains removed by Pleash after some discussion in relation to the stability of the load. Once the hoisting chains had been removed Malcolm Phillips climbed into the cabin of the truck, started the motor, and eyewitnesses to the accident stated that the truck had barely moved, if at all, when it started to roll over toward the driver's side. Once the truck entered the water, upside down, it disappeared quickly. According to witnesses, Mr. Phillips made an unsuccessful attempt to alight from the truck on the passenger side of the vehicle prior to it rolling over.
Stan Kourousis, Crane Driver, stated that the combination of the hopper and shot weighed approximately 5500 kg. The hopper empty weighed approximately 1100 kg. The white Nissan tabletop truck, registration number REM 294, was labelled with a Tare weight of 4540 kg and an aggregate weight of 9000 kg. This enabled the truck to carry a payload of a maximum of 4460 kg.
(Struck out)
All the employees interviewed stated independently that they had never been shown an instruction nor received any training by the defendant in regard to the movement of large items such as the hopper bin. This was confirmed by Peter Burgess, Joint Managing Director, when he stated that "The established system of work is to employ qualified persons with suitable tickets to carry out the handling and transport of large items (including the hopper bins)."
The accident to Mr. Phillips occurred because the load was unstable due to the combination of the truck and load being approximately one tonne greater than the Gross Vehicle Mass or Aggregate Weight of the truck, the positioning (in the vertical position) of the load onto the tray of the truck, the bulk of the weight of the load being elevated, and the angles of the loading platform.
Detective Senior Constable Thompson of the Engineering Investigation Section conducted a mechanical investigation of the truck and found no defect and even tyre pressures. His opinion was that the considerable leverage placed on the vehicle's frame and suspension by the narrow, high load along with the access ramp between the shore and floating dock being slightly angled towards the side of the imbalance would overcome any available suspension or tyre stability and thus cause the vehicle to tip.
When asked who the supervisor was in charge of moving the hopper, Mark Calvert said "I don't know who had that authority" He had never received instruction or training in transporting large items such as hoppers, and had never been shown any systems of work.
Russell Holtz did not know who the supervisor was. He had previously moved three hopper bins but had never received any instruction on transporting large items like hoppers. He received no training from the defendant, only a general safety induction program.
Michael Pleash didn't think there was a supervisor. Chris Leismann told him to move the bin and Dave McVey gave instructions to change trucks from the 9 tonne tipper to the tabletop truck. No instructions were given to empty the bin. He had moved "dozens" of hoppers around the site before, and loaded "half a dozen" hoppers/bins onto trucks, but never a full one before. He had never received instructions or training from the defendant on transporting large items like hoppers.
(Struck out)
Stan Kourousis, Crane Driver, had been involved in moving hoppers around the site 30 or 40 times before. Prior to the accident he had not received any instruction or training in transporting large objects like hoppers.
Emptying the hopper and laying it on its side would have been safer, but there was no work method statement, no instruction, training or supervision.
Dennis Waind states that he was the supervisor, but he wasn't present at the time of the accident. When asked what control he had over the work process being carried out to move the hopper he replied "None. The men I allocated on that job that day were the most competent people to carry out the job." He had been involved in moving hoppers around the site "a couple of dozen times" and used various methods. He had received no instructions or training as to the transport of large items.
Since the accident, training has been given to employees in regard to the transport of large items such as hoppers. All items must now be transported empty, and lying horizontal. Instructions have been issued as part of the induction manual, which is given to new employees. Vehicle operators were trained and signage installed to warn of the danger of large and unstable loads. Notices were placed on vehicles notifying the intending drivers the class of the ticket that is required to drive the vehicle, in accordance with WorkCover Notices. Information and training has been provided to drivers on loading and unloading trucks, along with all employees. Loads with a potential to be unstable have been identified and marked to identify the risk if they are to be moved. A Standard Operating Procedure was added to the Safety Manual which specifies that people experienced and qualified in moving and transporting loads must use their qualifications and experience to load vehicles.
On 1 July 1998 Inspector Plowright interviewed Peter Burgess, Joint Managing Director of the defendant, and the person nominated to speak on behalf of the defendant. The following emerged from the interview: a. Malcolm Phillips was an employee of the defendant. b. when asked who the supervisor was in charge of the operation to move the hopper bin on the day of the accident he stated that "To the best of my knowledge there were several supervisors indirectly involved. The operation was left to the qualified and experienced people who were doing the job as it was not perceived as an activity requiring the presence of a Production Supervisor. The people carrying out the operation were qualified to work unsupervised for this job." c. when asked what system of work or standard operating procedure was in place on the day of the accident he stated that "The established system of work is to employ qualified persons with suitable tickets to carry out the handling and transport of large items (including hopper bins)." d. When asked whether the movement of hopper bins by vehicles had occurred previously Mr. Burgess stated that "These bins are not routinely moved and to the best of my knowledge they are not usually moved by road transport." e. When asked what training had been given to employees of the defendant in regards to transport of large items like hopper bins before the accident he stated that "All employees starting at the Dockyard receive an induction training which covers the operation or the requirements to only work the equipment for which they have relevant qualifications. Prior to qualified people operating equipment with which they are not familiar, they received on the job familiarisation training by another ticketed person who is familiar with the equipment. Notwithstanding this we rely on the competency of the qualified person operating the machine or the equipment." f. Mr. Burgess further stated that "Prior to the accident the movement of hopper bins by trucks would not to the best of my knowledge have been perceived to be an unusual operation and would not normally require any additional training than that for which they were already qualified."
Inspector Twynam-Perkins attended the site on 29 June 1998 to ascertain whether Improvement Notices had been complied with. In relation to Improvement Notice no. 169124 inspection of a forklift truck and small mobile crane disclosed that notices had been attached to each stating that a certificate of competency or a person on a log book were the only persons who could operate that particular piece of plant. In relation to Improvement Notices No. 169125 and 170026 inspection disclosed that signs had been installed at various points around the premises warning vehicle drivers of the dangers of loads with unusual characteristics. In relation to Improvement Notice no. 170027 inspection of a hopper bin on the floating dock disclosed that it had been bolted down, the centre of gravity marked on the bin for when it is full or empty, a back guard has been fitted around the access ladder, the bin had an identifying number and there was a sign on the bin in relation to loading it on a truck only when empty and in a horizontal position. A further inspection of another hopper on the ground over by the slipway disclosed that the supporting legs had outriggers welded to them to create a wider base area to give the hopper better stability when in a free standing position. The notices had been complied with.
It is alleged that on 19 January 1998 at Forgacs Floating Dock, Denison Street, Carrington in the State of New South Wales the defendant, being an employer, did fail to ensure the health, safety and welfare at work of all its employees, in particular, Malcolm Dennis Phillips, contrary to Section 15(1) of the Occupational Health and Safety Act, 1983 in that the defendant failed to provide and maintain systems of work for the transport of large items such as hoppers on site. In particular the defendant failed: a. to conduct risk assessments of forseeable hazards to health and safety arising from the movement of large, heavy items on site such as hoppers. b. to ensure that loads placed on trucks were stable and secure. 2. The defendant failed to provide employees with such information, instruction and training as may be necessary to ensure that the hazard of transporting large items such as hoppers on the site was identified, and able to be done safely. 3. As a result of the said failures, the defendant's employee Malcolm Dennis Phillips drowned. 6 A number of photographs were tendered into evidence. These show in particular the forward access ramp along which the vehicle containing the bin was being transported as well as the bin and the truck after they had been recovered from the water. 7 The dimensions and the weight of the bin are set out in paragraph 6 of the statement of facts and further information concerning the weight of the bin and the specifications of the truck are contained in paragraph 10 of that document. The bin was being transported on the truck at the time that the accident occurred so that all of its weight was at the top, and it rested on its metal legs. The relevant photographs complement evidence which was contained in a number of witness statements to the effect that the centre of gravity of the truck with the bin standing on it must have been so high as to make the truck with the load attached to it unstable. 8 For example in referring to the circumstances leading up to the incident and the loading of the bin onto the truck Mr Russell Holz told the prosecutor that he thought that the bin "was too top heavy". This was especially so because it seemed to him that the ramp along which the truck had to travel had a list to the left hand side. He mentioned this to the driver, whom he referred to as "Mal" but the driver said that he thought it would be all right. Mr Holz said in his statement that just before the driver started off Mr Holz said to him "I'll watch the load Mal if I scream at all don't ask questions just jump out." He said: "He wouldn't have moved an inch when I noticed the top of the bin start to topple it went very slowly at first and then it just flipped the cabin off the truck, flipped Mal from the left hand side to the right hand side and then it was only a matter of seconds and the truck was sunk." 9 Another graphic description of the circumstances leading up to the incident was given by Mr Stan Kourousis a crane driver. He said in part: "…. Then Jimmy brought the table top down, then I was instructed by Mick Pleash to bring the load over the top of the truck again. Then I was directed by Mick to lower the hopper down so they could hold the legs and I was instructed to jib down a bit and let it come down a bit. Then they lined up as far as they could up the back of the cabin of the truck and then I was directed to lower it down till it topped the top of the truck which I did. The same thing the truck was unstable or it wobbled. Then they had a bit of a conference - Mick, Malcolm & Schizo. Then I saw a person which I am not sure who it was, it might have been Mick put a piece of timber under one of the legs. Then Schizo brought some chains to dog it down and once they dogged it down I was directed by Mick to come off a bit more, then they had another little conference among themselves. Then Mick climbed up on the hopper and signalled me to come right off which I did, then he took the chains off and they were just hanging a couple of metres off the hopper. There was Mark Calvert, he was in the back of the truck off the ramp, Mick was up the front of the truck and Schizo and Malcolm were on the left hand side of the truck up the front. Then I thought they had another conference - Schizo and Malcolm. Then they were all looking at the truck to see if it was level (that's what I thought anyway). Then Mick told Mark Calvert to move away from the side of the truck where he was, I knew this by hand signals that were given by Mick. Mark come up to the front of the truck, Malcolm and Schizo were still on the left hand side of the truck as I was looking down, they were talking about something but I don't know what. Then I seen Malcolm come around and get into the driver's side of the truck. He started the truck up because I seen the smoke coming out of the exhaust, then I thought that he had started to move but whether it moved forward or rolled back I don't know. Then I seen the hopper lean towards my left just a little bit, then it come back and started gong to my right and it just kept going then." 10 Having regard to the totality of the statements tendered in evidence from a substantial number of persons who were working in the vicinity of the place where the accident occurred, it is apparent that: a) No one person was in charge of the particular operation. b) The operation was conducted on a "consensus" basis as a result of communication between various persons. c) At least some of the persons present realised and were at all times aware that the truck and its load were unstable. d) The deceased Malcolm Phillips was also aware that the situation was potentially dangerous but nevertheless determined to "give it a go". e) No one had sufficient authority combined with sufficient vigilance to either utilise a safe method of transporting the bin or to stop the deceased from driving the vehicle down the forward access ramp. 11 Mr Burgess gave evidence that the defendant commenced operations in 1962 and carries on the business of engineering, ship repairing and ship building. It has about 600 employees and has work sites in New South Wales and Queensland. In particular it operated the floating dock in Newcastle which was the site of the accident. 12 Mr Burgess said that there were two sizes of bins used at the Newcastle yard. The smaller bin is called a filler bin which is transported frequently within the site. The larger bin which was the type of bin involved in this accident is not moved around the site and is normally in a fixed position. It is filled by using the smaller filler bins. 13 Immediately after the accident the WorkCover Authority of New South Wales issued a number of improvement notices which were relevant to the circumstances in which the accident occurred. These were all complied with within a short period of time and the manner of their compliance was discussed with the WorkCover Authority. The defendant has taken steps to preclude this type of accident occurring again. All employees are now made aware of the consequences of over-loading vehicles and matters going to load instability. All hoppers are marked with full and empty weights and the centre of gravity is also shown. The bins may only be moved by truck when empty and laid flat. This information and these warnings are supplemented by training given to employees, as well as information contained on warning signs at all usual loading areas. I observe that although the defendant is to be commended for these initiatives they are indicative of measures that the defendant should have taken before this tragic incident. 14 The defendant has also initiated a number of measures aimed at enhancing its occupational health and safety commitment and the awareness of its employees concerning health and safety issues. The defendant has retained expert assistance in this regard and now utilises measures such as tool box talks, formalised risk assessment procedures, the use of its safety committee, the creation of statistical means of measuring and monitoring its safety record, and detailed and extensive training for employees including managerial employees. Furthermore the defendant has arranged for safety audits to be conducted by external operators and has won a number of safety awards. Since 1997 the defendant has spent over $2 million on safety training and safety equipment.

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Judgment (17 paragraphs)

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