Industrial Court of New South Wales CITATION: Inspector Robert Alan Sealey (WorkCover Authority of New South Wales) v Toll Pty Ltd [2006] NSWIRComm 296 PROSECUTOR: Inspector Robert Alan Sealey (WorkCover Authority of New South Wales) PARTIES: DEFENDANT: Toll Pty Ltd FILE NUMBER(S): IRC 6644 of 2005 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(1) - guilty plea - transport industry - loading of frozen goods in congested loading bay - forklift unable to be parked safely and away from person loading trailer - loading mechanism activated causing forklift to slide resulting in severe crush injuries to employee - previous conviction - serious breach established - comprehensive failure of otherwise substantial safety system - general and specific deterrence - early plea - considerable subjective factors - penalty imposed HEARING DATES: 08/09/2006 DATE OF JUDGMENT: 09/13/2006 PROSECUTOR: Mr P Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr A Moses of counsel SOLICITORS: Clayton Utz JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 13 September 2006 Matter No IRC 6644 of 2005 INSPECTOR ROBERT ALAN SEALEY (WORKCOVER AUTHORITY OF NEW SOUTH WALES) v TOLL PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 296 1 On 22 December 2003, Mr David Price was employed by Toll Pty Ltd as a yardman/driver to work at the premises of Clelands Storage and Distribution Pty Ltd situated at Moondo Street, Greenacre. Mr Price's duties included assisting in the loading and unloading of trucks operated by Toll Pty Ltd. On this day, while performing those duties, Mr Price was pinned by a forklift against the rear door of a truck in the loading bay. He received significant crush injuries and was admitted to Liverpool Hospital for treatment. 2 After investigating this accident, proceedings were commenced against Toll Pty Ltd alleging a breach of s 8(1) of Occupational Health and Safety Act 2000. The company, after taking time to consider its position, entered a plea of guilty to an Amended Application for Order. This decision deals with the evidence and submissions put before the Court on the sentence hearing. 3 The Amended Application for Order identified and particularised the breach in the following terms: There was a failure to ensure that systems of work and the working environment of the company's employees were safe and without risk to health in relation to the work being conducted by it at the premises, work specifically related to the docking, unloading, loading and despatching of freight by reason that: (a) the company failed to conduct a proper risk assessment with respect to all aspects of the work required of its employees at the premises; (b) the company failed to properly identify and eliminate all risks associated with operation and use of the dock levelling ramp including risks associated with persons stepping onto the ramp whilst it was in motion or risks associated with operation of the ramp when the stability of freight or equipment could be affected by the movement of the ramp; (c) the company failed to identify and eliminate all risks associated with the fact that there was inadequate room available on the dock area adjacent to the ramp, because of the amount of freight stacked in that area awaiting handling for dispatch or storage, particularly in busy periods, and having regard to the lack of room preventing forklift vehicles having sufficient room to park safety and clear from the influence of the dock levelling ramp. (d) the company failed to provide and enforce the proper safe work procedure for the activation and/or use of the dock levelling ramp by its employees including the worker (e) the company failed to ensure that its employees and particularly the worker were properly inducted in relation to all aspects of their work at the premises and specifically in relation to the safe use and operation of the dock levelling ramp. Further, the defendant failed to provide such information, training, instruction and supervision in relation to the work of organising the loading, docking and despatching of freight and involving the use and/or operation of the dock levelling ramp such as was necessary to ensure the health and safety of its employees including: (a) the failure to provide proper training and instruction in relation to a proper safe work procedure to be followed in all circumstances with respect to use and/or operation of the ramp; (c) the failure to provide information related to the risks associated with forklift trucks driving and/or parking in close proximity to/or on the dock levelling ramp particularly when the dock area itself was congested with freight, or the dock levelling ramp was being operated. 4 The prosecution case comprised an Agreed Statement of Facts, a Factual Inspection Report prepared shortly after the accident, several photographs of the immediate site and the surrounding areas; and a record of prior convictions indicating that when the company was formerly trading under the name Finemores Pty Ltd, it had been found guilty of a breach of s 15(1) of the Occupational Health and Safety Act 1983 by the Chief Industrial Magistrate in relation to an incident in 1999 and had been fined $17,500 in 2001. The prior conviction brought into operation a maximum penalty of $825,000. 5 In order to fully understand the context in which this breach arose, the Agreed Statement of Facts is annexed to this judgment. 6 The evidence for the defendant was constituted by an extensive affidavit with numerous annexures sworn by Mr Neil Pollington who was employed by Toll Pty Ltd and who held the position of General Manager of Toll Express, Toll West and Toll Linehaul Divisions of Toll Transport Pty Ltd. Mr Pollington had previous experience with the Toll Refrigerated Division and had also been employed for a lengthy period by K & S Freighters in various operations and management roles. The Toll Refrigerated Division stored and distributed cold and refrigerated food products and ingredients on behalf of suppliers in the retail chain. 7 The Toll business had commenced in 1888 when it was founded by Mr Albert Toll. Mr Pollington noted that since that time the Toll Group had developed into a very large provider of integrated transport and logistic services and that the Group's transport infrastructure assets included ports, warehousing, road fleets, ships, rail rolling stock and air freight capacity. The Toll Group operated over 670 sites and employed over 28,000 people throughout its operations in Australia, New Zealand and in the Asia Pacific regions. Approximately 25 per cent of the Group's employees were based in Australia and approximately 10,000 of those employees were based in New South Wales. The Toll Group also engaged thousands of sub-contractors including contract carriers. 8 Mr Pollington stated that for various strategic and operational reasons the Toll Group conducted its operation though separate legal entities and trading divisions. The defendant in these proceedings was an administrative company within the Toll Group but was the employer of employees within the Toll Group. The defendant supplied the services of employees to the Group's operating companies including Toll Transport and Toll North Pty Ltd. Over 250 full-time employees were supplied by the defendant to the Toll Express Division for its New South Wales operations and Mr David Price was one such full-time employee. 9 After outlining the history of the Toll Refrigerated Division of Toll Express, Mr Pollington noted that the Toll Refrigerated Division supplied specialist cold and refrigerated storage and transport services to customers including retail chains. In relation to the services provided, Toll Refrigerated Division operated both "cross-dock" and "long term warehousing". The term "cross-dock" involved receiving cold and refrigerated food products and ingredients at a cold storage facility, storing those inbound products at the facility for various periods and arranging for those inbound products to be transported to an end destination. A cold storage facility was a warehouse designed to store food products and ingredients within certain temperature ranges in accordance with instructions given by customers. "Long term warehousing" involved receiving inbound products but storing them for periods of two to three days or more at a cold storage facility before picking, packing and despatching them as outbound products. 10 These functions had initially been performed at another site in Greenacre but due to the growth of the business and growth forecasts, a larger and more appropriate facility was required. Senior managers of the Toll Refrigerated Division considered alternative sites and ultimately re-located to the Moondo Street, Greenacre site. This cold store facility was owned by Clelands Storage & Distribution Pty Ltd ("Clelands") and at the site it operated a cross-dock system. Cleleands were already providing cold storage and cross-dock operations from this site to a number of other businesses and transport operators. The Toll Refrigerated Division became one of a number of businesses for whom Clelands provided cold storage and cross-dock operations. By May 2003, Toll Transport Pty Ltd and Clelands had entered into an agreement that permitted the Toll Refrigerated Division to occupy office space and co-ordinate a cross-dock operation at the Moondo Street site. Under the agreement a small office space was provided for the use of the Division for the purposes of carrying out administrative functions while the cross-dock was to be operated by Cleland's on behalf of the Toll Refrigerated Division. As part of this arrangement, Clelands' employees and/or contractors communicated and interacted with Toll's employees to ensure that inbound products were stored in accordance with customers' requirements and that outbound products would be dispatched in accordance with the Toll Refrigerated Division's delivery schedule. 11 At the Moondo Street site there were 12 loading docks at which inbound and outbound product was able to be loaded and unloaded by the use of forklifts or pallet jacks. The loading docks were described in a manner that was consistent with the Inspector's Factual Report and the contents of the Agreed Statement of Facts. 12 In relation to the dock leveller, Mr Pollington said that to enable the loading and unloading of products each loading dock at the site had a dock leveller installed. The dock leveller was a hydraulically operated platform that enable the height of the second tier of the loading dock to be adjusted up or down so as to provide a ramp from the first tier of the loading dock into the trailer of the truck. The leveller was operated by two simple buttons, an up button and a down button. The leveller also had a metal flap that, once operated, acted as the bridge between the loading dock and the trailer of a truck. The ramp created by the dock leveller permitted Clelands' employees and/or contractors to drive a forklift from the first tier of the loading dock into the trailer of a truck for the purposes of loading and unloading products. In its resting position the leveller would decline from the first tier to the front of the loading dock. 13 From approximately mid-May 2003, the Toll Refrigerated Division commenced using the services of Clelands to operate cross-dock and cold storage from the site. For this purpose Toll employed three allocators, two yardmen/drivers including Mr Price and an Operations Manager/Supervisor and various other operation and administration related personnel. 14 The day-to-day cross dock operation was described in some detail by Mr Pollington. That operation involved Clelands Dock Supervisor arranging for a Clelands employee and/or contractor to unload the inbound trailer using the dock leveller and a forklift to store the unloaded products in designated areas within the cold storage facility. Prior to the Clelands' employees unloading the inbound trailer, the Toll yardman/driver would open the rear doors of the trailer to permit it to be unloaded and once the unloading was completed the yardman/driver would close the rear doors of the empty trailer and drive it back to the designated Toll area. In relation to loading, the Clelands' Dock Supervisor would arrange for a Clelands' employee or contractor to retrieve outbound products from the cold storage facility and load the outbound trailer using the dock leveller and a forklift. Prior to that loading the Toll yardman/driver would open the rear doors of the trailer to permit it to be loaded and once the loading was completed, the Toll yardman/driver would close the rear doors of the loaded outbound trailer and drive it back to the designated Toll area. It was pointed out that the Toll Refrigerated Division was only one of about 10 to 15 other businesses and transport operators using this site and for whom Clelands was providing cross-dock and other cold storage facility operations. At all times the operation at the cold storage facility, such as the cross dock operation, loading and unloading and forklift operations were under the direct and exclusive control of Clelands. 15 To the best of Mr Pollington's knowledge the accident occurred when Mr Price had stepped onto the dock leveller and commenced to close the rear trailer door when a forklift driver engaged by Clelands through a labour hire company left a forklift truck unattended at the head of the dock leveller in the position where it was facing with its tynes towards the trailer and with its front wheels encroaching onto the head of the dock leveller. As Mr Price was in the process of closing the left side rear door of the trailer the forklift truck moved down the dock leveller, striking Mr Price then trapping him. The forklift driver was able to immediately reverse the forklift in order to release Mr Price who was given first aid assistance until emergency services arrived: he was conveyed to hospital with injuries to his head, torso and legs. 16 Detailed evidence was given by Mr Pollington concerning Toll Group's safety policies, procedures and systems. The Toll Refrigerated Division was subject to the direction and control of the Toll Group and its policies including policies on occupational health and safety. The Group's occupational health and safety policy was issued at a Group level and was published both as a document and in electronic form on Toll's website. The policy was publicised on a poster distributed throughout the various Divisions of the Group. That policy expressed the Group's commitment to safety. 17 The Toll Group had also developed a corporate risk management manual that contained the Group's occupational health and safety management system. That management system was distributed to branch managers of each business and trading division of the Group and each business and trading division was required to implement occupational health and safety policies and procedures that were consistent with the system. The system was subject to continuous review and change. There was also an employees' handbook and code of practice that were subject to ongoing review by the Group Risk department of the Toll Group. In addition, details were given of five instances where the Toll Group's safety and management systems had received accreditation under International and Industry Standards. 18 The policies, management systems and safety tools of the Toll Express Division were consistent with the Group occupational health and safety management system and had been developed with the assistance of the Group Risk Department. The Toll Express occupational health and safety system had been developed and implemented in 2002 and was in operation at the time of the accident involving Mr Price. The Toll Express system was a comprehensive on-line/electronic system that could be accessed via the Toll Express Division's internet system. The most important elements of the Toll Express system were the risk assessment procedure, the operation of the Risk Management Committee, obligations arising under management responsibility, occupational health and safety updates and developments (incorporating bulletins, specific danger memoranda and newsletters entitled "Safety Matters"), consultation through occupational health and safety committees and toolbox meetings, safety plans, targets and accountability submitted on an annual basis and incident reporting. In particular, Mr Pollington noted from the Safety Risk Reports that the average lost time injury frequency in 2003 was 22 but the average in 2006 was 7.8. That ratio was used in the transport industry and other industries as a standard measure of an organisation's safety performance. Considering the manually intensive nature of the operation in which Toll was involved, the reduction in the loss of time injury frequency ratio was said to demonstrate a significant improvement in the Division's safety performance. The policies were routinely reviewed. The Toll Group was self-insured for workers' compensation purposes and was therefore subject to routine audits by the WorkCover Authority. In July 2003, as part of WorkCover's audit of the Group the policies, procedures and practices of the Division were specifically audited over a period of three days by three WorkCover auditors. WorkCover was satisfied with the policies, procedures and practices of the Division allowing the Toll self-insurance licence to continue. 19 The Toll Group paid significant attention to training including training in driver fatigue management, training in relation to the Toll Express Division's driver manual and "Bluecard" training which was an industry accepted safety induction programme agreed between the Toll Group and the Transport Workers' Union. It was compulsory for all drivers within the Toll Express Division, including Mr Price, to attend all three of the training sessions. 20 At the Moondo Street site all employees were provided with the Division's training as described above. The Division and Clelands worked collaboratively to ensure that all Toll employees were trained and inducted in relation to Clelands' safety policies, practices and requirements. The Division operated an occupational health and safety committee that met regularly at the site. Managers and supervisors of the Divisions held regular toolbox meetings with employees at the site during which policies, procedures and occupational health and safety measures were discussed and were encouraged to be discussed. The Division also sent representatives to occupational health and safety committee meetings held by Clelands and in this way any safety concerns held within the Division in relation to the site could be raised directly with Clelands. The Branch Manager of the Division from time-to-time issued memoranda to all employees at the site in relation to specific safety issues. For example, on 10 November 2003, all drivers and warehouse staff were forwarded a memorandum in relation to loading and unloading of trailers. That memorandum directed drivers to enter the rear of the trailer only when all forklifts were in a stationary position. 21 In addressing what steps should be taken following the accident involving Mr Price, a complicating factor was the transfer of the entire Division from Toll Express to Toll North which was followed by Clelands selling the site to another business. As a result the refrigerated Division ceased operations from the Moondo Street site. 22 Despite these developments Toll Group took a number of steps to prevent a recurrence of the incident. Toolbox meetings were held to inform all Toll employees at the site about the accident and employees were instructed about the Division's requirements including the directions in the memorandum of 10 November 2003 that they stand clear of the loading dock during loading and unloading. There was also a direction that Toll employees were not to operate any Clelands' equipment including the dock leveller. Toll North commenced re-inducting Toll employees working at the site. The drivers' manual was modified as a result of Mr Price's accident and a specific provision made in relation to safety at customer sites. The Division acknowledged the safety risks arising from premises not within its direct control, including its customers' premises and so all new premises and major existing premises were to be initially risk assessed using a template that had been developed. New safety procedures were introduced in relation to the use of dock levellers with the publishing of a dock leveller operating procedures document, training in relation to the use of dock levellers and a prohibition on the use of dock levellers by any person who was not trained in its use. 23 In order to improve safety for employees working at external premises, the Division had developed a safe work method statement for Toll drivers working on site listing a number of risks that were common to work conducted by drivers at external premises and recommending a number of measures to eliminate or control those risks. Work method statements had been developed in collaboration with the owner/operators of external premises to deal with specific risks arising from their operations and examples were provided. There were ongoing reminders to all drivers about working out of external premises and operating the equipment of customers. 24 In relation to this particular incident, the defendant had notified WorkCover of the accident on the day it occurred and no improvement notices were issued. The defendant had at all times co-operated with the WorkCover Authority and complete access was provided to premises and documents. The defendant had entered its plea of guilty at an early opportunity. Mr Pollington expressed his personal sadness at hearing of the incident and the injuries sustained by Mr Price and expressed the Group's sincere regret that the accident occurred. The Group had taken the matter seriously and had introduced measures in an attempt to avoid a recurrence of such an incident. The Group had also provided rehabilitation for Mr Price to provide him with new skills and employment. 25 The Division was concerned about the health and wellbeing of Mr Price and immediately after the accident contacted his wife and remained in contact until his wife was able to arrive at the scene. The Division's Operations Manager had driven Mrs Price to the hospital and the family were provided with cab charge vouchers to cover the cost of transport to and from the hospital. The Division had raised nearly $700 within two days of the accident to provide the Price family with hampers, food and gifts for Christmas and senior managers had regularly visited Mr Price and his family at the hospital. While Mr Price was recovering from his injuries, Toll was obliged to pay his ordinary pay for a period of time but instead calculated his average earnings over a month and paid him average earnings resulting in much higher payments being made to him. Once Mr Price had recovered sufficiently to return to work a programme was formulated for his reintroduction to the workplace. Mr Price was provided with vocational training and he was redeployed into an office job. Mr Price remained employed by the defendant in an operational and administrative position. 26 In relation to its wider role in the community, Mr Pollington gave evidence of the Group's involvement in activities promoting the welfare of its employees and of the general community. The Group developed and supported a programme offering employment to experienced persons who had overcome drug addiction, provided a chaplaincy programme, providing care and counselling for employees facing difficulties (including family crisis, bereavement and grief, drug and alcohol dependence and gambling problems), was a leading a supporter of "Foodbank Australia" delivering food parcels to more than 1500 accredited welfare agencies and providing monetary and other assistance to a number of charities. DELIBERATION 27 The defendant accepted the objective seriousness of this offence and accepted that there was a degree of foreseeability about its occurrence although there were aspects of the incident that were not clearly foreseeable. The crush injuries received by Mr Price are evidence of the potential risk and those serious injuries which resulted in him being off work for many months may well have been worse if there was no one in the vicinity to quickly remove the forklift pinning him to the rear of the truck. I am in no doubt on the evidence that this is a serious breach of the Act and I accept the defendant's concession that there was an element of foreseeability about this incident having regard to the nature of work to be performed, the accumulation of goods around the loading bay and the inability of the forklift driver to park in an area away from those like Mr Price working at the rear of the truck. The forklift trucks were being used in close proximity to employees carrying out their duties and the site was one being used by a number of companies. All of these factors combined to raise a clear potential risk. 28 A number of steps were taken by the defendant to address this risk and they could easily have been taken prior to the accident. The defendant points to the fact that it had in operation a very detailed safety system and indicates the contributing culpability of Clelands (having control of the site) and the labour hire company (the employer of the forklift driver). Nevertheless, Mr Pollington's evidence was that there was co-operation between the defendant and Clelands in the formulation of safety polices at the site to address the differences in operations and to ensure that provision was made to cover the safety of all those in the work area. Finally, it has to be accepted that the defendant has pleaded guilty to a comprehensive failure in its systems that allowed this accident to occur. Particulars to which the defendant has pleaded guilty accept that there was a failure to conduct a proper risk assessment, a failure to properly identify and eliminate all risks associated with the use of the levelling ramp, a failure to address the amount of freight stacked in the area especially during busy periods resulting in the lack of room to safely park the forklift, the failure to provide and enforce proper safe working procedures for the activation and use of the levelling ramp, the failure to properly induct employees in the operation of the dock levelling ramp, the failure to provide proper training and instruction in relation to the safe work procedure to be followed in respect of the use and operation of a ramp and the failure to provide information relating to risks associated with forklift truck driving and parking in close proximity to the dock levelling ramp, especially when the area was congested with freight and where the levelling ramp was being operated. All of the above factors combine to establish this as a serious offence. 29 After some uncertainty, it was ultimately accepted by the defendant that there was one prior offence committed when the company was known as Finemores and when it was under different management. There was no indication that offence was in any way similar to the special circumstances surrounding the accident involving Mr Price. In those circumstances, the maximum penalty that can be imposed is $825,000. 30 In relation to general deterrence, this case provides another example of an experienced and well resourced employer providing significant and detailed safety systems yet running into a situation that is not precisely covered by its work rules. This case should serve as a general reminder of the need for employers to be diligent in extending their efforts to ensure safety and not to become complacent because of what appears to be detailed and comprehensive safety plans. In this case there should be an element in the penalty reflecting specific deterrence but I do not regard that as being necessarily a large element. Specific deterrence might be accepted as being a relatively minor consideration having regard to the existing safety systems and the additional steps taken by the defendant. There are good prospects that this type of accident will not occur again in its operations. 31 In relation to subjective factors, I accept the concession made by the prosecutor that at an early stage, after discussions had taken place and an amended Application for Order filed in Court, that the plea is properly considered to be an early plea attracting a discount of 25 per cent. 32 The defendant's prior record has been discussed and while that record opens it to the higher penalty range under the Act, considering the size and nature of the industry in which the defendant operates and the number of employees engaged by it, I believe its record can properly be considered as a good safety record. 33 The evidence establishes the contrition of the defendant and demonstrates it care for its employees including Mr Price during his lengthy period of medical treatment and absence from work. The defendant took steps to look after Mr Price's family and maintained his wages at a higher level than they were obliged to and then undertook retraining that allowed Mr Price to obtain office work rather than going back to his previous employment as a yardman/driver. The early plea also acts as a sign of the defendant's contrition. I accept the defendant's submission as to its co-operation with the WorkCover Authority and that was confirmed by counsel for the prosecutor. The evidence demonstrates the defendant to be a good corporate citizen involved with its own workforce and the wider community and contributing to a number of charities. All of those matters are to be taken into account in mitigating the penalty to be imposed. ORDERS 34 Having considered all of the matters referred to above, the Court makes the following orders: (a) the defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the amended Application for Order in Matter No 6644 of 2005, to which it has pleaded guilty; (b) the defendant is fined the sum of $115,000 with half that sum to be paid to the prosecutor by way of moiety; (d) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS 1. At all material times the prosecutor was an Inspector duly appointed under Division 1 of Pt 5 of the Occupational Health and Safety Act 2000 and empowered under s 106(1)(c) of the said Act to institute proceedings in the within matter. 2. At all material time TOLL PTY LIMITED [ACN 000 697 861] ("the defendant") a company duly incorporated and having its registered office at Level 8, 380 St Kilda Road, Melbourne in the State of Victoria. 3. At all material times the defendant was an employer. 4. At all material times the defendant employed David Price ("the worker") as a yardman to work at the premises of Clelands Cold Storage and Distribution Pty Ltd [ACN 053 534 437] ("Clelands") at its distribution and cold storage facility at 1 Moondo Street, Greenacre in the State of New South Wales ("the premises"). 5. At all material times Clelands conducted its operations involving the cold storage and distribution of products which involved among other things the docking, loading and dispatching of freight from the premises. 6. The premises comprised a two-level office building attached to a warehouse/storage building ("the freight building"). The freight building part of the premises had a number of loading bays to facilitate the unloading and dispatching of freight from the premises ("the freight building"). 7. There was a large open yard area in front of the loading bays into which area the trucks would enter to obtain access to the various loading bays. The surface of this yard area was concreted. 8. Within the freight building adjacent to the loading bays was a freight dock. The main freight dock itself within the freight building was approximately one and a half metres above the concrete surface of the yard area of the freight building, but there was also a second tier of the freight dock at the edge of the freight building which was only approximately one metre above the concrete level outside. 9. The loading bay known as loading bay number 4 was on the southern side of the freight building closest to the office section of the premises. 10. Situated in front of the dock at loading bay 4 was a dock leveller. This dock leveller had a manufacturer's plate attached to its underside which indicated on it the words 'TIEMAN'. The dock leveller was moveable hydraulically and was adjustable by push button controls which were situated on the wall beside the loading bay number 4 roller door, access to which controls being obtained while standing on the lower tier of the freight dock. The dock leveller was adjustable as to height, on a needs basis, so that it acted as a ramp which enabled loading or unloading from the semi-trailers attending at the loading bay. 11. At all material times Clelands had entered into a service agreement with Toll Transport Pty Ltd [ACN 006 604 191]("Toll Transport") a company related to the defendant in that each of them had the same ultimate holding company. The service agreement gave Toll Transport the right to occupy office space at the premises and to operate a 'cross-dock' at the premises. The agreement between Clelands and Toll Transport had been in effect from 12 May 2003. 12. Pursuant to the agreement between Clelands and Toll Transport, the defendant had a number of persons stationed at the premises conducting Toll Transport's freight moving operations. These employees included among them the worker. 13. At all material times the worker's duties included stationing himself near the bottom of the dock leveller inside the loading bay near to the rear doors of the semi-trailers which were being loaded or unloaded in order to ensure that the correct items of freight were being loaded or unloaded. His duties would also involve closing the rear doors of the semi-trailer once loading was completed. 14. At all material times Clelands engaged persons within the premises to move pallets of goods by means of forklift trucks between the cold storage rooms and the semi-trailers at the loading bays along the freight dock. 15. On and prior to 22 December 2003, it was the general practice when trucks arrived at the yard that the drivers would attend to paperwork first within the office and the yardmen which included the worker and another of the defendant's employees, Frank Dimech would thereafter direct the trucks movement to the appropriate bay for loading or unloading. 16. At all material times on an prior to 22 December 2003 the worker and the other yardman, Frank Dimech ('Dimech'), undertook both loading and unloading activities. The worker was mainly involved with loading operations whilst Dimech was more concerned with the unloading of the trucks. 17. On and prior to 22 December 2003, once a truck had been allocated to a particular loading bay it would be parked with its rear almost abutting the loading bay and then either the worker or Dimech or the Clelands dock staff would operate the dock leveller and place it in position on the tray of the truck after the rear doors of the truck had been opened. 18. The movement of freight was conducted by forklift vehicles which were operated by workers either employed by or otherwise engaged by the Clelands. The freight would then be moved to and from the semi trailers attending at the bays using the forklift vehicles. The forklift vehicles would obtain access into the semi trailer via the dock leveller which rested on the rear of the trailer and acted as a ramp that enabled the trailer to be loaded or unloaded. 19. At all material times the rest position of the dock leveller required its surface to be at an incline angle downwards from the main freight dock level to the lower level tier at the edge of the building. 20. At all material times it was not possible to close the rear doors of the semi trailers following the loading/unloading operations until the dock leveller had been removed and put into its rest position, where it was inclined downwards. 21. On 22 December 2003 after the worker had operated the dock leveller controls in order to lower it to its rest position he stepped on to the dock leveller, which acted as a ramp platform, whilst it was either still moving or had just stopped and went to close the rear doors of the trailer and succeeded in closing the left side rear door. 22. At around the same time that the worker had operated the dock leveller controls a forklift driver Greg Turnbull, an employee of the labour hire company Adecco who was let on hire to Clelands, parked his forklift vehicle at the top of the dock leveller at loading bay number 4 in a position with the tynes facing down the doc leveller and its wheels encroaching on to the top of the dock leveller. Turnbull had then alighted from the forklift vehicle in order to do some 'paperwork'. 23. At approximately 4.30pm whilst the worker was in the act of closing the left side rear door of the semi trailer at the number 4 loading bay he was crushed against the door by the forklift vehicle from which Turnbull had alighted moments beforehand after it had rolled down the incline of the dock leveller. 24. As a consequence of the incident the worker sustained serious injuries to his head, torso and legs as a consequence of being crushed against the rear door of the semi trailer by the forklift vehicle. 25. The worker has been unable to resume his normal work for a period of in excess of seven days following the accident. 26. As a consequence it is alleged that the defendant being an employer on 22 December 2003 at the premises failed to ensure the health safety and welfare at work of all its employees including the worker contrary to s. 8 (1) of the Occupational Health & Safety Act 2000. 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.