Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Barber v Storite Pty Limited [2003] NSWIRComm 228 PROSECUTOR: Inspector Mark Anthony Barber PARTIES : DEFENDANT: Storite Pty Limited (ACN 069 853 916) FILE NUMBER: IRC 1501 of 2002 CORAM: Schmidt J CATCHWORDS : Occupational Health and Safety - prosecution under section 15(1) of the Occupational Health and Safety Act 1983 - exparte hearing - no prior convictions - no plea entered by defendant - injured log truck driver - failure to provide information, instruction and supervision in relation to transportation of logs and unloading of logs - breach demonstrated - defendant found guilty of offence charged - defendant given an opportunity to make submissions as to penalty LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 07/22/2003 DATE OF JUDGMENT: 07/29/2003 PROSECUTOR: Ms LM McManus of counsel SOLICITORS: LEGAL REPRESENTATIVES: WorkCover Authority Legal Group DEFENDANT: No appearance JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 29 July 2003 Matter Number IRC 1501 of 2002 INSPECTOR MARK ANTHONY BARBER v STORITE PTY LIMITED Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 This prosecution was brought under s15(1) of the Occupational Health and Safety Act 1983 ('the Act'). While, when the matter first came before the Court, the defendant was represented, it later informed the prosecutor that it did not intend to appear to defend the charge. The Court was also informed that the defendant had withdrawn its instructions from its solicitors. Thereafter the matter proceeded ex parte. The defendant entered no plea. 2 The offence charged was: FAILED TO ensure the health, safety and welfare at work of all its employees, in particular Glen Roland Dunstall, contrary to Section 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are: a) Failed to provide or maintain systems of work that were safe and without risks to health in relation to the transportation of logs including the unloading of logs; b) Failed to provide such information, instruction, and supervision as may be necessary to ensure the health and safety of employees in relation to the transportation of logs including the unloading of logs; c) As a result of the Defendant's failures, Mr Dunstall was placed at risk of injury. 3 At the hearing evidence was called from Inspector Barber. Numerous documents were tendered, including statements made to the Inspector during his investigation and affidavits later sworn by various individuals, including a representative of the defendant and the injured employee, Mr Dunstall. 4 The defendant employed a number of truck drivers, including Mr Dunstall, to transport logs from a State forest to the Hardys Pty Ltd ('Hardys') timber mill at Tumbarumba. This work had been undertaken for about 6 years. 5 On the day of the accident Mr Dunstall was allocated a load of 80 logs to drive to the mill. He had then been employed about 3 months, having had about 14 years experience as a truck driver. He had not previously been employed in this industry. He was injured when one of the logs on the truck fell and struck him on the head, when he released the security chain on the front bay of the trailer, after he had arrived at the mill. He was wearing a hard hat at the time of the accident. No one saw what happened. 6 The defendant was not aware of such a fall having ever occurred before, although Mr Cook's evidence was that there may have been one prior occurrence at the mill, 3 or 4 years earlier. As far as he was aware there was no investigation into this incident. Mr Cook, a loader operator at the mill, was also aware that on a few other occasions, drivers had released one chain off each bay when waiting for the weighbridge at the mill. When this occurred, they were informed not to do so. Mr Dunstall had not been observed doing this before. 7 The length of the logs loaded onto the defendant's trailers varied, ranging from 3.7 metres to 6.1 metres. The defendant's practice was that longer logs were placed against the support stanchions and at the bottom of the load, with logs being loaded evenly between the stanchions and the shorter 3.7m logs being placed in the centre of the bay, surrounded by larger logs. There was no policy in relation to the minimum length by which logs were required to run past the stanchion posts. Crowned logs were required to be kept central, not against the stanchion. This was consistent with an industry Code of Practice. Truck drivers stood away from the truck, while it was loaded. They counted the logs as they were loaded and alerted the loader to any problems. 8 The defendant's loading procedure required that each bay of the trailer onto which logs were loaded be checked by the driver, secured by the driver using two straps or chains, with the number of logs carried being counted and recorded on a docket. Drivers were required to be satisfied as to the security of the load before they put on the security chains or straps. Drivers were responsible for the condition of the finished load and if not satisfied that the load was safe and secure, could redirect the loading. They were not to leave until so satisfied. 9 Drivers were given practical training and instructions by the defendant in the loading process and were supervised, until they showed competency in the process. There was also subsequent regular monitoring by supervisors. Practical training had been found by the defendant to be superior to written documentation, because many employees had limited schooling. The loading process itself was not documented, although that had been undertaken by the defendant after the accident. There had, however, been no changes to the loading procedures. 10 The evidence of Mr Richmond, who loaded the truck that day, was that it was possible that when a 3.7m log was loaded in the middle of a bay, that it could later roll against a stanchion, when he could no longer see it, as he was loading other logs. He explained the three-day training which he had undertaken at TAFE. His view was that he had received no other training. The defendant's view was that he had received on the job training, which he perhaps did not recognise as having been encompassed in the expression training. Mr Richmond also confirmed that it was the truck driver's responsibility to check the load. From photographs of the log in question, it appeared to Mr Richmond that it had been located at the top of the load, where it had been rubbing against a stanchion. He believed that it should there have been visible to Mr Dunstall, from where he was standing while the truck was being loaded and then when he was securing the load with chains. From Mr Richmond's position, while loading the truck, the log would not have been visible to him. In his opinion, the only way this could have been avoided, was if he had checked the load himself. 11 One of the chains on the truck driven by Mr Dunstall was broken and a strap was being used to secure the load, in its place. In accordance with his usual practice Mr Dunstall stopped when he reached tarred road and tightened the load. He had also kept the load under observation in the mirrors, as he was driving. 12 The defendant's unloading procedure required the driver to report to the gatekeeper at the mill and to proceed to the unloading area at his direction. There was radio communication available. The driver was then expected to visually inspect the logs and use a bar to release the locking pins of the chain or straps. The driver then walked away from the load, pulling the slack of the chain or strap, unhooked it from the other side, then returned to the binder and while looking up, pulled the strap or chain over the load and wound it up. The driver then stood at the front of the truck where the unloader could see him, while the truck was being unloaded. 13 Since the accident the unloading procedure had been altered by the defendant. Any bay containing 3.7 metre logs, (the shorter logs carried), was clamped by the loader at the mill at the point of unloading. The truck driver was also responsible for notifying that short logs were being carried. This had been a new Boral requirement and was not regarded as being safe by the defendant. Mr Cook also expressed the opinion that this system was dangerous. A cage type system was being considered and in his view, the Code of Practice should be altered to reflect this. Mr Anderson, Logging Manager, was also of the opinion that this clamping system eliminated the risk of the logs falling, but increased other risks for the truck driver. Mr Jones, Site Manager Tumbarumba, expressed similar views. Mr Phillips, Logistics Manager, also expressed reservations about the safety of a cage system, given a risk analysis which had been conducted. 14 It was clear on the evidence that inspecting the load before releasing the restraining chains or straps was commonsense, that being the point of greatest risk of the unloading process, for the driver. The defendant understood that it was a part of the procedures in which drivers were inducted. The evidence showed that no-one other than the driver was involved in checking the load, before the chains or straps were released and there was no supervision of the driver doing so. 15 Risk assessments had been conducted by the defendant as to the risk associated with releasing the security chains before the accident, but they had not been documented. The evidence of Ms McIntrye, office manager, was that Mr Dunstall had been informed of these risks. Her evidence was that the fixed stanchions formed the safety system which restrained the load of logs falling, when the security chains were released at the mill. This however, obviously depended upon the length of the logs and where they were lying, in relation the stanchions. There was no log security chain to protect the driver when the load security chain was released. Nor was there a system whereby the unloading machine secured the logs when the load security chains were released. Mr Anderson's evidence was that if a driver found a problem with a load at the mill, then the load was restrained before being unchained. This had occurred on a number of occasions. 16 Mr Dunstall had been inducted at the Hardys' mill and his signature appeared on the Boral Timber Pty Limited Instructions and site rules for log truck drivers, dated 24 March 2000. These instructions did not deal with checking the security of the load, before releasing the security claims. He had also been shown what to do at the mill by his boss, on the first occasion he went to the mill. 17 On the day of the accident, Mr Dunstall released a security strap on the front bay of the trailer, before entering the mill, having driven 45 kilometres from the forest to the mill. This was contrary to his training, which required the straps to remain in position until the final destination was reached inside the mill. In the defendant's view, it had no control over this aspect of the work, unloading of logs at the mill was a part of the Boral system of work. The view was also expressed that the introduction of a requirement that drivers wait before entering the mill had led to the accident. In this case, the driver had looked for something to do while waiting. 18 On that day Mr Dunstall had found that his usual point of entry at the mill was blocked and he then gained entry at the weighbridge, which had a truck on it, also blocking access when he arrived there. He waited for 5 minutes and then removed the back strap from the front bay of the trailer, in order to save time and to draw himself to the attention of those at the weighbridge. He threw the strap over the truck, rolled it up and returned to the truck, where he waited another five minutes. He then drove about 800 metres to the log yard, where the accident occurred. This was not in accordance with the training which Mr Dunstall had received. This was the first occasion on which he had driven over the weighbridge. 19 Mr Dunstall's evidence was that he did not make any inspection of the load in relation to movement of the logs, before releasing the chains, 'Because you always have 2 or 3 feet are (sic) below the stanchions so unless there is something extremely obvious, no I don't.' On the day of the accident he had made no inspection either, although he believed that there were no logs that were visible inside the stanchions. He went on "Mind you I am only 187cm and the top of those logs is 4 metres. So you can't see really what's up on top". His evidence was that he had not been warned to check the logs before releasing the chains, but thought that it was a matter of common sense. 20 Mr Dunstall had no memory of what had occurred, after he placed a steel bar in the chain retractor, after alighting from the truck. Mr Dunstall was found lying on the ground, by the loader operator, Mr Arnold. The next thing Mr Dunstall remembered was being on the ground, surrounded by people. He then had no feeling from the waist down and was transported to hospital suffering from head injuries and a paralysis which persisted for four days, but from which he had recovered. He also received 12 sutures to his left elbow, had suffered a compression of the vertebrae and continued suffering from severe headaches and restricted movement. He has not worked since the accident. 21 The defendant had been unable to investigate the accident, other than by speaking to Mr Dunstall. It had taken steps to warn drivers about the accident, after it had occurred. This was the first accident which had occurred in relation to the unloading of such logs as far as the defendant was aware. The defendant had no prior record. Consideration 22 I am satisfied that the evidence showed that the defendant was an employer; that amongst other truck drivers it employed Mr Dunstall and that on the day of the accident, it failed to ensure the health, safety and welfare at work of its employees, particularly Mr Dunstall. 23 The evidence as to the system of work which the defendant had in place in relation to the transportation of logs to the Hardys mill, showed that it was not safe and without risk to health. There were obvious deficiencies in the approach adopted to securing the safety of the load, at the point at which it was unloaded. While that work was performed at the mill, where the defendant's employees also came under the direction of the mill owner, the evidence showed deficiencies in the system, for which the defendant had undoubted responsibility. Likewise, relevant deficiencies in the information, instructions and supervision given by the defendant to its employees in relation to the work in question, were demonstrated on the evidence. 24 The evidence revealed that the security of the type of load here in question depended on shorter logs being loaded, so as to be surrounded by longer logs resting against the trailer stanchions, which would help prevent the logs falling from the load. The load was also secured by chains or straps. The height of the logs on the truck, once loaded, was far taller than the truck driver who had responsibility for the security of the load. The driver observed the loading process. That process encompassed the possibility that a shorter log would not be restrained by a longer one, if a shorter log moved during the loading process. If the driver was not alert to this possibility having eventuated, or if the logs became unstable during the trip to the mill, so that a shorter log was not adequately restrained any longer, the system again relied upon the driver identifying that the load was unstable, prior to releasing the chains or straps holding the load. 25 The risk which flowed from the chains or straps being released, if the load was unstable, was an obvious one. It materialised in the circumstances of this accident. Whether that resulted from Mr Dunstall releasing the strap securing the load before reaching the yard on this occasion, or for some other reason, was not clear on the evidence. The risk potentially flowing from him having done so, was an obvious one, however. If the load was already unstable at that point, Mr Dunstall not having identified the instability, this can only have exacerbated the problem. 26 Given the evidence of the number of logs and loads per day delivered to this mill and the absence of accidents of this kind prior to the one which involved Mr Dunstall, other than perhaps on one prior occasion, when a log fell from a load, it cannot readily be concluded that the defendant's system to guard against the risk here in question was a completely deficient one. Whether this resulted from good luck, rather the good management, is difficult to say. 27 Nevertheless, I am satisfied that the breach of the section with which the defendant was charged, has been demonstrated on the evidence. While the evidence as to the defendant's system was that its drivers were required to visually check the security of the load, before they left the forest and again later, before they released the chains and straps on the load after their arrival at the mill, that evidence was not consistent with Mr Dunstall's evidence as to his approach to the unloading operation, nor with the evidence of those working at the mill, as to what was there done and required. Such a requirement did not form a part of the written instructions given to drivers by the mill. The defendant had no written instructions. Nor was there any supervision to ensure that such a check occurred, either by the defendant or by the mill owner. 28 Commonsense obviously required that a check of load stability be made before the chains and straps were released, as Mr Dunstall recognised in his own evidence. The risk which would arise for a driver releasing those restraints if the load was not secure, are obvious, as I have observed. The evidence did not permit the conclusion that a visual check of load security would be sufficient in every case to identify that the load had become unstable. This no doubt explains the steps taken by the mill after the accident. Steps which I note were not universally regarded as having ensured safety of the unloading operation. 29 The section imposes an absolute obligation upon employers to ensure employees' safety while at work. A reliance upon commonsense alone will often not be sufficient to ensure that an employer meets the statutory obligation, especially in a system where the employer relies upon on the job training which is undocumented on the one hand, and on the other, where reliance is also placed upon a written induction given by a third party, which does not address itself to this, commonsense aspect, of the steps necessary to ensure the safety of the work in question. That the vital, commonsense step is then not observed in practice, clearly arises as a possibility. That is what, in fact, occurred here. 30 In addition, as I have noted on the evidence here, it was clear that a visual check by a driver as to load stability might not be sufficient, especially if a short log has become insecure, high up in a load of 80 logs of varying lengths, packed on a truck up to 4 metres high. That there was no other check required or conducted, no supervision given to ensure that even such a cursory check was conducted by the driver and no other steps taken to protect a driver, if the check was overlooked, or proved to be inadequate to detect instability out of a driver's view, clearly left the circumstances of this accident open. That accident resulted from a risk to safety which the employer failed to protect its employees from, as the charge alleged. Order 31 For all of these reasons, it follows that the defendant must be found guilty of the offence charged. I so find. 32 The prosecution has made submissions on penalty, which I have not yet considered. I propose to give the defendant an opportunity to make any submissions on sentence, it might wish to advance. I direct that the prosecutor serve its written submissions on penalty, together with a copy of this judgment and advice that the matter will listed for hearing on sentence at 9:30am on 21 August 2003. The parties have liberty to approach in the meantime, if that date is not convenient. ------------------------ 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.