Brian Beecroft of the Timber Trade Industrial Association underlines the importance of understanding and compliance with new legislation.
An ill-judged decision that caused the death of a young employee has resulted in a small business ending up with a conviction and a $1.3m fine. A court found the sole director must pay $120,000 compensation to the family and complete two years’ unpaid community work.
The accident occurred when the director of the Melbourne stonemasonry was using a forklift to move an empty A-frame rack. He was driving the forklift across a sloping driveway with the load raised when it tipped over and crushed the 25-year-old, who had been trying to steady the swinging load.
The young worker was working with his father in a business using the same warehouse as the stonemasonry, and over the previous decade the two businesses had regularly worked together.
Security cameras in the company’s warehouse and across the street captured footage, described in court as ‘harrowing’, as the forklift tilted and fell, pinning the 25-year-old under it.
The director of the stonemasonry called for help and the young man’s father rushed over to find his son crushed under the machine. When it was lifted, the director and others tried to unsuccessfully to revive him.
Image: NURA ALAM/stock.adobe.com
First conviction
The company was prosecuted under section 39G(1) of Victoria’s Occupational Health and Safety Act 2004, which provides that a person must not engage in conduct that is negligent, constitutes a breach of duty owed to a person and causes the death of that person.
The new provision, introduced in July 2020, carries a maximum penalty of 25 years imprisonment for a person, or 100,000 penalty units (almost $18.2 million at the time of the offence) for a body corporate.
The director was initially charged with workplace manslaughter, but the charge was subsequently transferred to the company. In Victoria’s Supreme Court, the director pleaded guilty as an officer of the company to a less serious offence, admitting liability for the failure to take reasonable care which resulted in the breach of the workplace manslaughter provision.
In court
WorkSafe’s investigators submitted it had been reasonably practicable for the stonemasonry company to reduce the risk of serious injury or death by ensuring the forklift was driven with the load as low to the ground as possible, only driven in reverse down slopes or inclines, not driven across, or turned on, slopes or inclines, and only operated when other people were at a safe distance.
The failure to ensure the forklift was operated properly was negligent because it fell well short of the standard of care that would have been taken by a reasonable person in the circumstances.
The director admitted he had not followed safety guidelines around operating forklifts on a slope.
The director had told WorkSafe investigators he ‘never thought it’d be that dangerous’. He said he didn’t understand how the accident had happened, as he had told the young man to stay clear of the forklift.
He also said he’d shouted at him to ‘get back’ as the forklift began to tilt, and that ‘maybe he thought he could hold it’. This indicated that the director realised the young man was close to the forklift, which is another departure from safety guidelines – forklifts should only be operated in an exclusion zone with people kept at a safe distance.
In Victoria’s Supreme Court, Justice Michael Croucher said the negligent conduct itself was very brief, occurring over a number of seconds.
Justice Croucher noted the director had cooperated with authorities, entered an early guilty plea and showed remorse for what had happened. He had ‘deep feelings of sadness and guilt’ and had provided significant financial assistance to the young man’s family, including paying almost $17,000 for the funeral.
Justice Croucher fined the company $1.3 million – a sum significantly greater than the company’s assets – and ordered the director to pay the young man’s family $120,000 in compensation, as well as completing a forklift operation course and a two-year community corrections order, under which he will have to do 200 hours of community service.
What it means for tree contractors
While this case deals with a forklift, it could just as easily apply to equipment and machinery used by tree contractors. Duty holders face serious personal and financial consequences if they do things that put the workers’ health and safety at risk of death. TTIA Members in other states are also increasingly affected by industrial manslaughter legislation.
The TTIA WHS unit Manager, Ken Hocking, is able to assist in safe-work policies and procedures regarding the operation of forklifts.
TTIA has a fully functioning in-house WHS unit which is there to support TTIA members nationally, and the association has long-term experience in the tree-contracting industry. TTIA also has a proven record in safety management, documentation, training and legal resources. Should you require a WHS audit of your workplace, please contact Ken Hocking on 0418 280 335 or the TTIA Office on (02) 9264 0011. For more information on the TTIA, log on to ttia.asn.au.
