A NSW employer whose "generic" safe work method statement failed to prevent the death of an 18-year-old trainee has been fined $60,000 out of a possible $550,000.
The judge, however, praised its attempts to make safety "a priority".
In 2007, a Lithgow Tyre Service trainee was inflating a forklift tyre when the nuts and studs on its two-piece composite rim - which were old and worn - failed.
The rims split in half with explosive force and the worker was struck, sustaining fatal injuries.
The employer was charged with breaching the State Occupational Health and Safety Act 2000, in failing to provide a safe system of work and training and instruction that specifically addressed the fitting of tyres to two-piece divided rim assemblies of the type used on forklift trucks.
Risk assessments informal and undocumented
In the Industrial Court, Justice Trish Kavanagh heard the employer's OHS management systems were based on advice and documentation from an OHS consultant, who only conducted "general" risk assessments.
The employer contended - and staff agreed - employees were trained to perform informal, undocumented risk assessments for each type of rim they worked on.
The employer also said the worker had been instructed not to fit tyres with worn studs and nuts - but admitted he was not yet competent to repair a tyre in a two-piece composite frame unsupervised.
Another worker had been allocated the task, it said, but after work commenced, had moved to another job.
Justice Kavanagh found the employer's "generic" safe work method statement "contained little, if any, information relevant to the task [of] repairing a tyre that was in a two piece composite frame".
She said the worker had been given on-the-job training generally, but the training was undocumented and informal in nature; no records were made or maintained with respect to training received or competencies.
"These failures were in breach of the [employer's] own written occupational health and safety plan, in operation as at the relevant date," she said.
However, she also took into account "subjective elements".
"I note this is not a worksite where there was no system of work although this task was not recognised sufficiently in the system nor risk assessed," she said. "[The employer] had an on-going commitment to safe working and had paid a professional occupational health and safety consultant on a continuing basis."
That person:
• regularly held OHS meetings on site;
• conducted regular inspections on site; and
• advised the company of the ongoing development of its existing safe work systems.
"This [employer] had in fact one of the most continuous occupational health and safety review systems inside a small workshop that the Court has reviewed."
Justice Kavanagh said the offence was "serious" and easily preventable, but said the family company provided vital employment to a country area, and fined it $60,000.
Inspector Karen Simpson v Wingruby Pty Ltd t/as Lithgow Tyre Service [2010] NSWIRComm 104 (13 August 2010)
The purspose of continually reviewing the OHS Risk Management Program within your business is crutial for the identification of tasks that pose risk to workers. An employer can demonstrate a safe system of work through the undertaking of a work task analysis, the development of a safe work procedure, providing on the job training and instruction, and supervision to ensure the procedure is appropriate for task being performed. Your OHS Plan should include the review of Safe Work Procedures. Is this the level you maintain in your business? Take time to review....it's worth it!
Thursday, August 19, 2010
Thursday, August 5, 2010
Injured office worker wins $420K after floor-mat concerns ignored
A Queensland employer adopted an "unreasonable stance" in insisting workers use plastic mats beneath their office chairs - despite complaints they were slippery, the Supreme Court has found in awarding an injured worker more than $400,000 in damages.
In 2006 two Invitro Technologies Pty Ltd workers complained to their office manager that the plastic floor mats issued to all workstations were "extremely slippery".
The workers said the mats caused their chairs to "flick out" from under them whenever they stood up, and were so dangerous they would prefer not to use them.
But the office manager said she had "orders" that all workstations should be the same, and told the workers not to remove the mats.
The following year, one of the workers stood up from her chair to access a bookshelf and, as she sat down, realised the chair had moved. By then she had started to fall, and landed on the floor, fracturing her sacrum (a large bone at the base of the spine).
She remained off work for nine months, during which time she was also diagnosed with depression, and sued her employer for negligence.
Employer claims worker "simply slipped"
Before Justice David Boddice, Invitro claimed the mat had no causal relationship with the fall, and said it hadn't been negligent because the worker simply slipped from her chair as she sought to resume her seat.
According to the employer, employees from an associated company had used similar mats for 10 years without a mishap or complaint. The mats made the chairs easier to move than on carpet, and their "rippled effect" provided traction, it said.
Invitro also claimed a "reasonable" employer must balance various workplace risks. The fact the mats overcame the difficulty of using the chair on carpet validated their use.
Justice Boddice rejected the view the worker "simply slipped", and said the employer adopted an "unreasonable stance" regarding the use of mats.
He found Invitro breached its duty of care in:
• instructing the worker to use the chair on the plastic mat when it knew - or should have known - it was a dangerous;
• failing to act on the workers' complaints - there was no evidence the employer investigated the issue; and
• failing to remove the mats when a reasonably prudent employer would have done so.
Justice Boddice said the claim that workers from outside the company had not encountered problems with similar mats had "no forensic weight".
He also noted that the mat was not tended in evidence and the employer did not offer any expert evidence regarding the level of friction between the mat and chair.
Justice Boddice awarded the worker $419,461 for past and future economic loss and other damages.
In 2006 two Invitro Technologies Pty Ltd workers complained to their office manager that the plastic floor mats issued to all workstations were "extremely slippery".
The workers said the mats caused their chairs to "flick out" from under them whenever they stood up, and were so dangerous they would prefer not to use them.
But the office manager said she had "orders" that all workstations should be the same, and told the workers not to remove the mats.
The following year, one of the workers stood up from her chair to access a bookshelf and, as she sat down, realised the chair had moved. By then she had started to fall, and landed on the floor, fracturing her sacrum (a large bone at the base of the spine).
She remained off work for nine months, during which time she was also diagnosed with depression, and sued her employer for negligence.
Employer claims worker "simply slipped"
Before Justice David Boddice, Invitro claimed the mat had no causal relationship with the fall, and said it hadn't been negligent because the worker simply slipped from her chair as she sought to resume her seat.
According to the employer, employees from an associated company had used similar mats for 10 years without a mishap or complaint. The mats made the chairs easier to move than on carpet, and their "rippled effect" provided traction, it said.
Invitro also claimed a "reasonable" employer must balance various workplace risks. The fact the mats overcame the difficulty of using the chair on carpet validated their use.
Justice Boddice rejected the view the worker "simply slipped", and said the employer adopted an "unreasonable stance" regarding the use of mats.
He found Invitro breached its duty of care in:
• instructing the worker to use the chair on the plastic mat when it knew - or should have known - it was a dangerous;
• failing to act on the workers' complaints - there was no evidence the employer investigated the issue; and
• failing to remove the mats when a reasonably prudent employer would have done so.
Justice Boddice said the claim that workers from outside the company had not encountered problems with similar mats had "no forensic weight".
He also noted that the mat was not tended in evidence and the employer did not offer any expert evidence regarding the level of friction between the mat and chair.
Justice Boddice awarded the worker $419,461 for past and future economic loss and other damages.
Wednesday, August 4, 2010
Worker's jail sentence a safety lesson for employers: lawyer
A recent Queensland case, in which a worker - and not his employer - was convicted over a mining fatality, has highlighted the role a robust safety management system plays not only in reducing incidents, but protecting companies from prosecution, a workplace relations lawyer says.
Sparke Helmore partner Matthew Smith told OHS Alert that while he was not directly involved in the case, it appeared the worker had defied instructions - going "off on a frolic of his own" - in the lead up to the incident.
"[This was] a situation in which someone was trained, and disregarded his training," Smith said.
The employer was not charged because "there was an appropriate safety and health management system in place, and the workers who were involved in the incident had been adequately trained in that system - they knew what the systems were".
In January 2008 the worker was driving a Volvo loader with a basket-attachment at BHP Billiton's underground Cannington mine, when a colleague was crushed between the basket and the rear of another vehicle, sustaining fatal chest and abdomen injuries.
An investigation found the worker failed to appropriately operate and apply the loader's brakes, and he was charged with breaching s36(2)(b) of the Queensland Mining and Quarrying Safety and Health Act 1999.
In recent Townsville Magistrates Court proceedings, he was convicted and sentenced to eight months' jail (wholly suspended for 15 months), and ordered to pay more than $13,000 in court and investigation costs. (The decision is not available online.)
Three key messages
According to Smith, the case sends three "key" messages to employers:
1. Ensure you have a robust health and safety management system, regardless of your industry.
"It needs to be documented and it needs to be followed through, so the reality of what you do matches what's contained in the documents";
2. Ensure employees are trained in and understand that system.
"You're going to need to be able to demonstrate that. If you can do that and something goes wrong, you're in a defensible position. It also minimises the possibility of things going wrong"; and
3. Take swift action when employees do the wrong thing.
"If they breach the safety system, don't hesitate to take severe action against them. In other words, consider discipline, consider termination. Courts view [such breaches] very seriously - I think employers should too."
Smith noted that Queensland is the only Australian jurisdiction in which people have been sentenced to jail for safety breaches, with the case at hand being the third time.
"Queensland courts, particularly rural Queensland courts, are willing to impose terms of imprisonment," he said.
Sparke Helmore partner Matthew Smith told OHS Alert that while he was not directly involved in the case, it appeared the worker had defied instructions - going "off on a frolic of his own" - in the lead up to the incident.
"[This was] a situation in which someone was trained, and disregarded his training," Smith said.
The employer was not charged because "there was an appropriate safety and health management system in place, and the workers who were involved in the incident had been adequately trained in that system - they knew what the systems were".
In January 2008 the worker was driving a Volvo loader with a basket-attachment at BHP Billiton's underground Cannington mine, when a colleague was crushed between the basket and the rear of another vehicle, sustaining fatal chest and abdomen injuries.
An investigation found the worker failed to appropriately operate and apply the loader's brakes, and he was charged with breaching s36(2)(b) of the Queensland Mining and Quarrying Safety and Health Act 1999.
In recent Townsville Magistrates Court proceedings, he was convicted and sentenced to eight months' jail (wholly suspended for 15 months), and ordered to pay more than $13,000 in court and investigation costs. (The decision is not available online.)
Three key messages
According to Smith, the case sends three "key" messages to employers:
1. Ensure you have a robust health and safety management system, regardless of your industry.
"It needs to be documented and it needs to be followed through, so the reality of what you do matches what's contained in the documents";
2. Ensure employees are trained in and understand that system.
"You're going to need to be able to demonstrate that. If you can do that and something goes wrong, you're in a defensible position. It also minimises the possibility of things going wrong"; and
3. Take swift action when employees do the wrong thing.
"If they breach the safety system, don't hesitate to take severe action against them. In other words, consider discipline, consider termination. Courts view [such breaches] very seriously - I think employers should too."
Smith noted that Queensland is the only Australian jurisdiction in which people have been sentenced to jail for safety breaches, with the case at hand being the third time.
"Queensland courts, particularly rural Queensland courts, are willing to impose terms of imprisonment," he said.
Linfox fined $150K for tardy response to identified safety risk
Logistics giant Linfox has been fined $150,000 after a judge found it didn't act on an identified safety risk in time to prevent a forklift crash, which seriously injured a worker. Also in this article, Comcare has launched proceedings against the ARTC over the deaths of two non-employees.
In December 2007 the Linfox Australia Pty Ltd worker was driving a fork truck loaded with a 32-tonne container inside a congested shed when the load struck a stack of stationary containers, and the vehicle overturned.
He suffered severe and permanent injuries to his abdomen and limbs, and is still in danger of losing his right leg.
Following a two-year investigation, Comcare initiated proceedings against the employer.
Safe operation hinged on driver's judgment
In the Federal Court, Justice Neil McKerracher heard that Linfox acquired the Western Australian container yard in August 2006, and - about a month before the incident - appointed a new site manager who identified a number of safety risks, including:
• a culture of speeding in mobile plant;
• dilapidated forklifts; and
• congestion.
At the time of the incident, however, a planned expansion of the site had not been completed, and a formal hazard identification of the worker's tasks had not been undertaken.
"As a result, the link between congestion at the site and the risk of the fork truck tipping had not been identified," Justice McKerracher said.
The worker, he noted, was required to drive with the load raised to a height of more than eight metres (double that recommended by the Australian Standard) to fit through the carriageway.
Justice McKerracher also found that while a speed limit of 8km/hour applied to all vehicles, fork trucks weren't fitted with speedometers, nor instruments to measure the mass of loads or mast tilts.
"The operation of the fork truck in relation to these factors was reliant upon the judgment of the operator," he said.
"The speed of the fork truck and the weight of the container and the height at which the container was being carried were all contributing factors to the incident occurring.
"These factors would have been managed through the installation of controls in the fork truck and/or better training and supervision. Those steps were all reasonably practicable and could have been implemented."
Justice McKerracher ordered Linfox to pay costs of $25,000, in addition to the $150,000 fine.
Comcare v Linfox Australia Pty Ltd (ACN 004 718 647) [2010] FCA 793 (27 July 2010)
In December 2007 the Linfox Australia Pty Ltd worker was driving a fork truck loaded with a 32-tonne container inside a congested shed when the load struck a stack of stationary containers, and the vehicle overturned.
He suffered severe and permanent injuries to his abdomen and limbs, and is still in danger of losing his right leg.
Following a two-year investigation, Comcare initiated proceedings against the employer.
Safe operation hinged on driver's judgment
In the Federal Court, Justice Neil McKerracher heard that Linfox acquired the Western Australian container yard in August 2006, and - about a month before the incident - appointed a new site manager who identified a number of safety risks, including:
• a culture of speeding in mobile plant;
• dilapidated forklifts; and
• congestion.
At the time of the incident, however, a planned expansion of the site had not been completed, and a formal hazard identification of the worker's tasks had not been undertaken.
"As a result, the link between congestion at the site and the risk of the fork truck tipping had not been identified," Justice McKerracher said.
The worker, he noted, was required to drive with the load raised to a height of more than eight metres (double that recommended by the Australian Standard) to fit through the carriageway.
Justice McKerracher also found that while a speed limit of 8km/hour applied to all vehicles, fork trucks weren't fitted with speedometers, nor instruments to measure the mass of loads or mast tilts.
"The operation of the fork truck in relation to these factors was reliant upon the judgment of the operator," he said.
"The speed of the fork truck and the weight of the container and the height at which the container was being carried were all contributing factors to the incident occurring.
"These factors would have been managed through the installation of controls in the fork truck and/or better training and supervision. Those steps were all reasonably practicable and could have been implemented."
Justice McKerracher ordered Linfox to pay costs of $25,000, in addition to the $150,000 fine.
Comcare v Linfox Australia Pty Ltd (ACN 004 718 647) [2010] FCA 793 (27 July 2010)
Neglect safety's "poor cousin" at your peril, says lawyer
Employers neglect safety's "poor cousin" - health - at their peril, particularly as the two are so often inextricably linked, a safety lawyer warns. Also in this article, a Comcare boss stresses the value of harassment-specific risk assessments.
"I see a lot of reference to safety, but not to health," Sparke Helmore partner Paul Cutrone said of his 18 years in OHS law, at the National Workplace Safety Summit in Sydney last week.
"[But] some health risks are directly linked to safety risks. If you don't identify health risks, the regulator will - after an event."
The 2003 Waterfall train disaster - in which the train driver most likely had a heart attack prior to the derailment in which he and six passengers were killed - provides a profound example of this, Cutrone said.
In that incident, the Tangara train was equipped with a "deadman" safety system, whereby a foot pedal was released and the brakes automatically applied when drivers became incapacitated or left their seat.
An investigation found, however, that employees (such as the driver of the doomed train) who weighed more than 90kg "could hold the pedal in the set position through the weight of their legs whilst incapacitated", and the NSW State Rail Authority was fined $385,000 for OHS breaches.
According to Cutrone, a risk assessment focussed on health could have identified the risk.
"The real challenge with health is that often we don't see the immediate impact," he said.
Stress-specific risk assessments critical
Comcare work health director Christina Bolger, who also spoke at the summit, said that while many Commonwealth employers were seeing declining physical injury rates, they were still struggling with diseases, such as psychological disorders.
Psychological injuries account for about nine per cent of workers' compensation claims, but 30 per cent of claims costs, Bolger said.
Employers, she said, must conduct bullying, harassment and stress-specific risk assessments, and train line managers in identifying signs of distress and supporting their staff.
"The line manager is the prism through which the workplace is perceived," she said. If injured workers can trust their immediate superiors, they will trust the employer.
Bolger also stressed the importance of getting injured staff back to work as quickly as possible.
The health risks of long-term worklessness are equivalent to smoking 10 packets of cigarettes a day, she said, referring to research.
"Not only is the workplace a good place to be, it's a good place to recover." It is critical for those with mental health issues "to be kept and supported at work".
"I see a lot of reference to safety, but not to health," Sparke Helmore partner Paul Cutrone said of his 18 years in OHS law, at the National Workplace Safety Summit in Sydney last week.
"[But] some health risks are directly linked to safety risks. If you don't identify health risks, the regulator will - after an event."
The 2003 Waterfall train disaster - in which the train driver most likely had a heart attack prior to the derailment in which he and six passengers were killed - provides a profound example of this, Cutrone said.
In that incident, the Tangara train was equipped with a "deadman" safety system, whereby a foot pedal was released and the brakes automatically applied when drivers became incapacitated or left their seat.
An investigation found, however, that employees (such as the driver of the doomed train) who weighed more than 90kg "could hold the pedal in the set position through the weight of their legs whilst incapacitated", and the NSW State Rail Authority was fined $385,000 for OHS breaches.
According to Cutrone, a risk assessment focussed on health could have identified the risk.
"The real challenge with health is that often we don't see the immediate impact," he said.
Stress-specific risk assessments critical
Comcare work health director Christina Bolger, who also spoke at the summit, said that while many Commonwealth employers were seeing declining physical injury rates, they were still struggling with diseases, such as psychological disorders.
Psychological injuries account for about nine per cent of workers' compensation claims, but 30 per cent of claims costs, Bolger said.
Employers, she said, must conduct bullying, harassment and stress-specific risk assessments, and train line managers in identifying signs of distress and supporting their staff.
"The line manager is the prism through which the workplace is perceived," she said. If injured workers can trust their immediate superiors, they will trust the employer.
Bolger also stressed the importance of getting injured staff back to work as quickly as possible.
The health risks of long-term worklessness are equivalent to smoking 10 packets of cigarettes a day, she said, referring to research.
"Not only is the workplace a good place to be, it's a good place to recover." It is critical for those with mental health issues "to be kept and supported at work".
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