Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Robinson) v Milltech Pty Ltd [2001] NSWIRComm 51 PROSECUTOR WorkCover Authority of New South Wales (Inspector Robinson) PARTIES : DEFENDANT Milltech Pty Ltd FILE NUMBER: IRC82 of 2000 CORAM: Marks J CATCHWORDS : Occupational Health & Safety Act prosecution - Experienced employee - Employer's obligation to carry out risk assessment - Employer found guilty LEGISLATION CITED : Occupational Health & Safety Act s 15(1) and s 53 Drake Personnel v WorkCover Authority of NSW (1999) 99 IR 432 CASES CITED : SRA v WorkCover Authority of NSW (2000) NSWIRCommm 261 Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (2000) NSWIRComm 239 Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (2000) NSWIRComm 240 HEARING DATES: 02/15/2001; 02/16/2001 DATE OF JUDGMENT: 03/29/2001 PROSECUTOR Ms P E McDonald of counsel SOLICITORS Ebsworth & Ebsworth LEGAL REPRESENTATIVES: DEFENDANT Mr G W McGrath of counsel SOLICITORS Arnold Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Thursday 29 March 2001 Matter No IRC 82 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR ROBINSON) v MILLTECH PTY LTD Prosecution under s 15 (1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 On 12 January 1998 Milltech Pty Ltd ("Milltech") transported some equipment to a warehouse area in Selwyn Street Mayfield, a suburb of Newcastle. Milltech was relocating its business. The equipment was loaded on to a company truck and driven by a casual employee Phillip Ross Black to the warehouse. At the warehouse, Mr Black and three other employees were required to unload the truck. The other employees were Adam Heuston, the company's safety officer, Jason Kibble a storeman and forklift driver and Scott Wilson the Operations Manager who was nominally in charge of the task. Mr Wilson was aged 23. 2 Mr Wilson and Mr Heuston unloaded some lighter items by hand. Mr Kibble used a forklift truck to unload the heavier items, working under the direction of Mr Black. Mr Black was an experienced truck driver who had experience in material handling. He also had forklift and mobile crane tickets. 3 There was an overhead crane available for use in the warehouse. 4 There was one last item on the truck. It was part of tensile testing equipment, namely a straining machine. The machine was an RH 30 model manufactured by Shimadzu Seisakusho Ltd of Japan. The machine had been purchased by Milltech from Precision Calibrating Service Newcastle Pty Ltd in about January 1997. 5 The machine weighed 1370kgs. It had two cross heads at the top which could be adjusted in height from a metal base. The cross heads were operated by an electrical motor. The machine was about 15 to 20 years old and was made of steel. It was about 2030mm high. The centre of gravity was about 970mm from the bottom. The machine appeared to have a solid base. However the base was hollow and this deceived the persons involved in the moving operations. 6 When the employees started to unload the machine it was in the centre of the tray of the truck. The forklift tynes could not reach all the way under the machine, that is they could not be placed under it. It was decided between the persons present to use the forklift tynes to manoeuvre the machine towards the edge of the truck. Once the forklift tynes could be properly inserted under the machine it could be lifted safely. This was because, for balance, the machine had to be close to the mast of the forklift. 7 Mr Kibble drove the forklift under the direction of Mr Black. Mr Black stood near the machine on the truck tray. Mr Kibble did not have a clear view of the tray. There was a raised steel edge around it. Mr Kibble inserted the tynes partly under the base of the machine, and with the forklift brought it closer to the edge of the truck by about 100mm. The machine started to rock and Mr Kibble placed it down. Mr Wilson then climbed onto the tray to help and Mr Kibble again pushed the tynes under the machine. Mr Black told him to lift the machine and move it. Mr Kibble lifted the machine a little way but it again rocked. Mr Black instructed Mr Kibble to put the machine down but it continued to rock and then rolled over striking Mr Black and throwing his body over the edge of the tray of the truck and hitting his right leg. Mr Black suffered crush injuries to his chest and abdomen and died later that day. 8 The accident was investigated by the police and the WorkCover Authority of New South Wales. The Coroner held an inquest. 9 The WorkCover Authority of New South Wales has charged Milltech with a breach of s 15(1) of the Occupational Health and Safety Act 1983, alleging that Milltech had failed to provide or maintain a system of work that was safe and without risks to health in respect to the unloading of the machine from the vehicle. In particular the allegations involved a failure: (a) To properly assess the risks and hazards associated with unloading the machine. (b) To adequately stabilise the machine while it was being unloaded. (c) To provide adequate supervision of employees engaged in the unloading process. (d) To make adequate inquiries about a safe method of unloading the machine. (e) To adopt a safe method to unload the machine. 10 Milltech answered the allegations by alleging firstly that there was nothing wrong with the method chosen to unload the machine. The machine when purchased from Precision Calibrating was picked up by Mr Black in the same truck. Gary Dykes a director of Precision Calibrating was there when Mr Black picked up the machine. A forklift lifted the machine from underneath and placed it on the truck. This was said by Mr Dykes as well as Colin Purvis, a sales and technical employee of Precision Calibrating, to be a usual way of moving these machines, although it was also possible to lift the machines by using an overhead mobile crane. 11 The second matter raised by Milltech in defending the charge was that the whole operation was under the control of Mr Black who was very experienced in moving equipment. Milltech alleged Mr Black was so experienced that there was no need for him to be instructed as to the best way to load or unload the machine; he was able to devise the right procedures for the task and there was no need to supervise him. 12 Furthermore Milltech alleged it had an experienced group of employees of whom seven had overhead crane driver's tickets. In addition Milltech relied upon its policy of safety awareness which involved formal safety meeting held each month to discuss safety issues. 13 Milltech therefore submitted it could not be guilty because there was no fault on its part and that if there was any fault it was that of Mr Black who, as an experienced employee was in charge of the operation. 14 The defence raised by Milltech is not unusual in prosecutions of this kind. 15 However s 15(1) creates an absolute obligation on employers. That is, employers are required to ensure the workplace and work environment for all employees do not involve any risk to their health and their safety. All employers are required to have a safe system of work for each task and to properly train and instruct their employees about those tasks; they must ensure that the workplace and means of getting to and from the workplace are safe and without any risk of injury; they must ensure that all equipment, tools and plant used by employees are safe; and that all employees are properly trained and instructed about the safe use of tools and equipment and the proper handling, storage and transport of them. These examples are not exhaustive but do provide some useful guidance to employers. Furthermore, the obligations of an employer under s 15(1) are continuing obligations. 16 The Managing Director of Milltech, Mr Manfred Reis gave evidence before the Coroner. He was asked whether Milltech carried out a risk assessment of the task of moving this particular piece of machinery. Mr Reis replied that the company relied on the information given to Mr Black when he took delivery of the machine. The actual loading and unloading of the machine was considered part of normal operations. However Mr Reis conceded that had a formal risk assessment of the task been carried out it may well have identified a possible risk to the safety of employees in transporting the machine. When asked by a WorkCover inspector who had investigated the accident what safe working instructions had been given to employees Mr Reiss said he relied upon the qualifications of many of his employees and the regular monthly safety awareness meetings conducted with them 17 When asked while giving evidence in the Coronial Inquest whether, since the incident the Company had taken any steps to put in place a more formal or written procedure manual Mr Reiss replied : "Not in relation to forklifts, the instruction basically there is, you know, if the - stay away from the thing when it's lifting so if any - from the radius if, you know, if anything happens to fall." 18 Milltech is required under s 15 to create a system of work which eliminates risks of injury to employees. All tasks must be assessed to ensure the system of work allows no risk of injury. Having created a safe working system Milltech must train and instruct its employees in the performance of that safe working system. Even an employee who is experienced or who is a supervisor must be properly trained. Such training and instruction must be appropriate and may take into account the experience of the workers. However it must also take into account that sometimes employees are inattentive or careless. 19 Milltech made no risk assessment of the task and had not put in place any system of work about carrying out this task. It had not provided Mr Black or Mr Wilson with any training or instructions about carrying out this task. 20 This was not a case of a simple lift carried out under ideal conditions. The forklift tynes could not be fully used to lift the machine. What needed to be assessed was the safest way of manoeuvring the machine across the tray of the truck so that the forklift could be used to lift it safely. 21 If a risk assessment has been carried out consideration would have been given to the design and specifications of the machine. Consideration would have been given to whether it was likely to over-balance when being pulled across the tray of the truck by forklift tynes which were not fully inserted underneath the base of the machine. Consideration would have been given to ensuring that no person would have been allowed to remain in the vicinity of the machine if there was a likelihood that it could over-balance. Consideration would also have been given to whether alternative means of manoeuvring the machine across the tray of the truck could have been used and what instructions, training and warnings should have been given to persons involved in the moving process. It was not sufficient for Milltech as the employer to leave the responsibility for carrying out this task safely to be assessed by workers carrying out the task on the spot. They did not exercise the necessary foresight and vigilance to avoid any undue risk to the health and safety of persons who may have been affected by the task. 22 There are defences available to Milltech under s 53 of the Act. If Milltech relies on these defences, as it did in the proceedings it has the onus of proving that these defences applied, although this needs only to be proven on the balance of probabilities. 23 A first defence is that it was not reasonably practicable for Milltech to comply with the obligations imposed on it by s 15. There is no evidence that it was not practicable for Milltech to have taken steps to assess the dangers involved in manoeuvring this machine across the tray of the truck in the manner in which it did when this incident occurred. There was no evidence that it would have been impracticable to issue instructions to all employees to stand well clear of the machine while it was being moved. These findings are sufficient to defeat this first defence. The second defence is that the commission of the offence was due to causes over which Milltech had no control and against the happening of which it was impracticable for it to make provision. Once a question of impracticability is found against Milltech in connection with the first defence it cannot rely on the second defence, because the same reasoning applies in terms of practicability as it did to the first defence. 24 The WorkCover Authority also alleged that the machine should have been lifted up either by using the overhead crane or, if the forklift was used, by placing the tynes under the lower cross head which was well above the base. If the tynes were placed under the lower cross head the centre of gravity of the machine would have been just above the tynes and the load would have been much more stable. 25 These methods of lifting seem to have first been proposed by Mr Fergus Bell during the course of investigations being carried out by the WorkCover Authority. He is the Managing Director of Australian Materials Inspection and Testing Equipment Pty Ltd ("AMITEST") which is the only organisation authorised by Shimadzu Australia to service and supply spare parts for its range of machines. Mr Bell was approached by the WorkCover inspector investigating this accident in about March 1999. Mr Bell produced to the inspector a copy of a Shimadzu manual which had been placed in the company archives in about 1966 and which does not appear to have been used since. Mr Bell retrieved the manual only after he had received an inquiry from the WorkCover inspector. That manual contained some directions and diagrams about the recommended method of lifting the machine. This included using a forklift under the lower cross head and also using an overhead crane. However before any of these methods could be used adjustments would have had to be made to the machine before it was loaded onto the truck. 26 The information given by Mr Bell to the WorkCover inspector was not available to Milltech. Milltech had never been given the manual or seen it. The only information Milltech had was that given by the staff at Precision Calibrating Service when Mr Black picked up the machine. Mr Black had been informed only that the machine could be moved by a forklift from under the base. The WorkCover inspector who investigated the matter expressed the same view. 27 It is not necessary to reach any conclusion about whether the failure of Milltech to ensure that either the overhead crane was used or the forklift was used by placing the tynes under the lower cross head amounted to a breach of s 15(1). Perhaps, these are matters which would have been considered if a risk assessment had been carried out. It is, however, the failure to carry out the risk assessment which is sufficient to render Milltech guilty of the charge. 28 For all of these reasons Milltech is guilty of the charge. 29 The evidence in the proceedings consisted of statements given by a number of persons to the Police and the WorkCover Authority of New South Wales and the transcript of evidence given before the Coroner. A statement of Fergus Bell was tendered and oral evidence was given by him. Statements and oral evidence were also given by David Ng of the WorkCover Authority of New South Wales and Dr B J Hill of the Department of Mechanical Engineering at the University of Newcastle. It has not been necessary to consider the competing views of Messrs Bell and Ng on the one hand and Dr B J Hill of the other as to the most appropriate method of lifting the machine. The only other factual controversy surrounded a question as to whether Mr Black was situated on the tray of the truck at all times whilst attempts were made to manoeuvre the machine using the forklift. Such doubt that exists is created by the way in which some of the statements given to the Police by the witnesses were framed. The conclusion on the totality of the evidence is, however, that at all material times Mr Black was standing on the tray of the truck whilst attempts were made to manoeuvre the machine across it. Some facts have not been stated specifically. For example, the defendant conceded that the prosector was authorised to commence the proceedings under s 48 of the Act. 30 The absolute nature of the offence referred to in para 15 is described in many cases. For example a Full Bench of this Court in Drake Personnel v WorkCover Authority of New South Wales (1999) 99 IR 432 said: The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances: see Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 469. Under s 15(1) the obligation of the employer is "to ensure" the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provisions, to those which are reasonably foreseeable. Whilst employers are not liable for risks to safety which are merely speculative or unduly remote (see Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50), the terms of s 15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. It is inappropriate to seek to substitute a different test for that specified in s 15(1). (at 452). 31 The manner in which this absolute obligation impacts upon employers was described recently by a Full Bench of this Court in SRA v WorkCover Authority of New South Wales (2000) NSWIRComm 261. At para 23 the Full Bench said: It is apt while considering the nature of the obligation cast on an employer to maintain a safe workplace to repeat the words of Hill J, with which we agree, in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at p 85, that is: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. 32 The emphasis is on the elimination of a risk of injury. The obligation under s 15 is directed towards a risk of injury not necessarily to any particular accident. See, for example, the discussion of the Full Bench in Drake Personnel previously referred to at 452-3. 33 The requirement to carry out a risk assessment in appropriate circumstances has recently been considered by a Full Bench of this Court. See Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (2000) NSWIRComm 239 esp at par 73 and see also generally Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (2000) NSWIRComm 240. 34 Section 53 of the Act referred to in para 22 is in the following terms: It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 35 The provisions of s 53 were recently discussed by a Full Bench of this Court in Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (2000) NSWIRComm 240. The Full Bench discussed the question of foreseeability of risk in connection with the availability of the defence under s 53, in circumstances which are not directly relevant to the arguments advanced in these proceedings. However at par 68 the Full Bench adopted comment which is appropriate to the carrying out of a risk assessment and the benefits of having done so in terms of a s 53 defence. 36 Para 68 is as follows: In WorkCover Authority of New South Wales (Inspector Glass) v Kellogg, Walton J, Vice President referred to the relevance of foreseeability in a defence under s 53. His Honour said: It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364. In WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381, for example, Hill J commented in relation to s53: "If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight." This does not remove the obligation, to which I have earlier referred, of an employer to adopt a proactive approach to safety issues which seeks to discover and remedy potential risks to its employees and others. It is not a question of whether the employer did envisage a particular danger, but rather whether it should have. ORDERS 37 The following orders are made: 1. The defendant is found guilty of the charge contained in the summons. 2. The proceedings are stood over to allow the parties to consider what submissions are to be made with respect to conviction and penalty. 3. Liberty to apply is granted to enable the proceedings to be relisted to deal with the penalty and any other outstanding matter. This may be exercised by making telephone contact with my Associate. ___________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.