Industrial Court of New South Wales CITATION: Inspector Ritchie Green v Tyre Marketers (Australia) Ltd [2007] NSWIRComm 122 PROSECUTOR: Inspector Ritchie Green PARTIES: DEFENDANT: Tyre Marketers (Australia) Ltd FILE NUMBER(S): IRC 5976 of 2005 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(1) - tyre fitter working on site and remote from business centre - tyre explodes while being inflated - tyre fitter injured - guilty plea entered - risk known to defendant - deficient equipment supplied to tyre fitter to work on customer's site - failure to provide wheel restraining gear - failure to provide supervision and training to ensure work performed safely - prior offences - serious breach - need for general and specific deterrence - early plea - considerable subjective features - detailed safety plan and training available - risk known and easily addressed - penalty imposed HEARING DATES: 1 May 2007 EXTEMPORE JUDGMENT DATE: 1 May 2007 PROSECUTOR: Mr M Cahill of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mrs W Thompson of counsel SOLICITORS: Blake Dawson Waldron JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 1 May 2007 Matter No IRC 5976 of 2005 INSPECTOR RITCHIE GREEN v TYRE MARKETERS (AUSTRALIA) PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2007] NSWIRComm 122 1 Tyre Marketers Australia Pty Ltd is a large company and a wholly owned subsidiary of Goodyear Tyres Pty Ltd and Pacific Dunlop Tyres Pty Limited. The company owned and operated a business known as "Beaurepaires for Tyres" that conducted a tyre retailing repair business from a number of outlets throughout Australia. One such outlet which was the Coffs Harbour store. 2 On 12 December 2003 an employee of Tyre Marketers who was working from the Coffs Harbour store was injured while inflating a truck tyre. 3 Following an investigation Inspector Ritchie Green commenced prosecution proceedings against Tyre Marketers alleging a breach of s 8 (1) of the Occupational Health & Safety Act 2000. The amended application for order alleged a failure to ensure the health, safety and welfare at work of employees, including Michael Ilitch, contrary to s 8(1) of the Act. The particulars of the alleged offence were as follows: (i) The defendant failed to ensure that its systems of work and the working environment of the employees at the site was safe and not a risk to health in that: (a) the defendant failed to undertake a proper risk assessment on the use of the Hi-Lux utility as a road service vehicle which would entail work involving the inflation of tyres at sites remote to the work premises; (b) the Hi-Lux ute was made available for use by the worker for the purposes of conducting the work including the inflation of tyres remote to the work premises when such vehicle was not properly equipped with any appropriate tyre restraining devices which could effectively contain the tyre or rim in the event of it exploding under pressure. (ii) The defendant failed to ensure that the Hi-Lux ute provided for use at work by its employees, including Mr Ilitch, was safe, without risk to health when properly used in that it was being used for the purpose of conducting the work of tyre-fitting and repairs remote from the defendant's work premises, which work involved the inflation of truck tyres and was being conducted when such vehicle was not properly equipped for such purpose in that it did not have a mechanical or hydraulic restraining device which was capable of restraining the tyre. (iii) The plaintiff did not have the equipment or the means by which tyre-fitters generally, including Mr Ilitch, conducted such work at remote sites to ensure that such work could proceed safely and consistently with its own published safety requirements "Working Safely: A Guide to Health and Safety in a Workplace" and particularly in respect of tyre inflation which application mandated the use of "safety cages or restraining devoices". (iv) The defendant failed to provide such information, training, instructions and supervision in relation to the work of inflation of truck tyres when this work was being performed remote to the work premises such as was necessary to ensure the health and safety at work of its employees. 4 Following a number of appearances before the Court, the defendant entered a plea of guilty to the charge contained in the Amended Application for Order and did so when that the Amended Application was filed in Court. This judgment deals with the evidence and submissions on penalty. 5 The prosecution case consisted of the following: the Amended Application for Order; an Agreed Statement of Facts; a factual inspection report prepared by Inspector Green; a number of coloured photographs; a document entitled "Working Safely: A Guide to Health and Safety in our Workplace" produced by SPT Retail - Human Resources Department, dated April 1998; A Job Safety Analysis re Task: Off Site Truck Tyre Inflation, undated; Standard Operating Procedure re Task Inflating a Tubeless Truck Tyre dated 1 November 1999 produced by South Pacific Tyres Retail; an Improvement Notice issued to Tyre Marketers Australia by Inspector Green dated 16 March 2004; and, a Record of Prior Convictions relating to the defendant. 6 The defendant's evidence consisted of an extensive affidavit and exhibits sworn by Mr Rowan James Wall, the National Manager, South Pacific Tyres Safety Systems. 7 It is appropriate, for a proper understanding of this matter, that the Agreed Statement of Facts be set out and that document appears as an annexure to this judgment. Without going into detail, that document acknowledges that Mr Ilitch had been employed since February 2000 although he had experience in the tyre industry for between ten and eleven years. In relation to the task Mr Ilitch was performing on the day of the incident, he heard a creaking sound and he knew that this was a warning sound and approached the safety valve to turn it off when the tyre exploded. It is said that the equipment, including the safety air gauge provided to him, was found not to be defective. Although he suffered some injuries when hit by the tyre, Mr Ilitch rejected offers of hospital assistance, continued to work and apparently then proceeded to annual leave although he ultimately provided a medical certificate in January 2004. 8 It was agreed that, as a consequence of the tyre exploding and striking Mr Ilitch in the back, he sustained trauma to his lumbo-thoracic spine and that prevented him from performing his normal work for a period of seven days following the incident. No further evidence was available as to the nature of his injuries. 9 The failures that are agreed are these: at the time of the incident the Hi-Lux utility did not contain safety straps or other form of restraining device for use when inflating tyres at sites remote from the defendant's premises; prior to the incident, the defendant had not undertaken a proper risk assessment of the use of the Hi-Lux ute as a road service vehicle in situations where it was being used in the inflation of tyres at remote sites. Mr Ilitch was permitted to use the Hi-Lux ute for undertaking this work remote from the defendant's premises; there was an alternative vehicle, a Toyota truck, that was properly equipped for use for the work of fitting truck tyres remote to the defendant's premises but Mr Ilitch was not required to use that vehicle; prior to the incident, the defendant did not ensure that the work of fitting tyres remote to the defendant's premises was conducted in accordance with its own published safety requirements; prior to the incident the defendant did not ensure that its employees and in particular Mr Ilitch received sufficient information, training, instructions or supervision in relation to the work of the inflation of truck tyres remote to the defendant's premises; and, prior to the incident the defendant did not ensure that at all times the Hi-Lux utility contained safety straps or any other form of restraining device for use for work including the fitting of truck tyres remote to the defendant's premises and the defendant did not have in place prior to the incident a safe procedure for the work of inflating truck tyres at sites remote to the defendant's premises where the work was being performed using the Hi-Lux utility. 10 There is reference in the material to the defendant's Guide to Health and Safety in the Workplace, the April 1998 document, which amongst other things dealt with inflating and deflating tyres. That document noted that tyres contain air under pressure so that they may explode and that even where there were large tyres and wheel assemblies that were very heavy, when they explode they are thrown violently by the force of the escaping compressed air. It was noted that an exploding wheel is a high speed projectile which can kill or seriously maim anyone in its path. In relation to inflating tyres, one of the steps nominated in the policy was "always use safety cages or restraining device when inflating". Another of the steps in the nine step procedure was to "stand well clear". It might be noted at this point that an addition to the equipment had been supplied by the defendant that allowed the tyre-fitter to stand at some distance from the truck. 11 The evidence of Mr Wall, the national manager STP Safety Systems was contained in a detailed affidavit with many exhibits referring to the systems adopted prior to this incident and the steps taken following the incident. Mr Wall was able to indicate the history of and the corporate structure of the defendant, noting that he was employed by South Pacific Tyres in his position and that South Pacific Tyres and Tyre Marketers Australia Pty Ltd were related entities ultimately owned by Goodyear Australia Pty Ltd. In his position as manager, SPT Safety Systems, he was responsible for the effective provision of occupational health and safety services across SPT and Tyre Marketers. 12 As indicated, his affidavit was lengthy and I do not attempt to reproduce every part of it but some matters deserve particular attention. Mr Wall had held his current position since March of 2007 having commenced with SPT in November 2004. Among his principal responsibilities were: guiding occupational health and safety policy performance and standards and criteria in consultation with senior management; monitoring and reporting on key aspects of the company's safety performance; and, injury prevention. He said that he was one of ten dedicated occupational health and safety professionals employed by the company and the company was in the process of recruiting for the position of national occupational health and safety adviser for Tyre Marketers Retail network, a position that would report to him. As part of his own background Mr Wall had been an OHS consultant for around five years. 13 In relation to the company's operations, including the Coffs Harbour store, it was noted that there were two key networks; manufacturing and retail. In relation to manufacturing, the company's operations involved production of a range of new tyres for distribution for wholesale and retail clients, one of which was a manufacturing plant in Victoria operating 24 hours a day. The retail network focused on the distribution and sale of tyres and repairs. There were 306 company-owned retail stores across Australia trading under the Beaurepaires' name. There was also a franchised network of stores throughout Australia branded as Goodyear Auto Care. 14 In relation to employees, there were over 2700 employed by the company across Australia and there was a breakdown provided of that figure - nearly 1600 people were employed in retail stores performing in-store sales and acting as service fitters, and there were another 600 employees in New Zealand. Mr Ilitch had been employed by the defendant as an off-site service fitter at the Coffs Harbour store, the store owned and operated by Tyre Marketers. 15 Beaurepaires was described as offering a large range of products including tyres for a range of vehicles including industry vehicles and also providing a national 24-hour, 7 day a week emergency roadside service for heavy transport and farm machinery customers. At the time of this incident at the Coffs Harbour store there were eight employees, including the store manager and six service fitters. It was said that the Coffs Harbour store was known as a commercial store that largely serviced trucks and other industrial type machinery. That work was performed by persons employed as service fitters and typically those fitters performed work off-site either at roadside locations or at customers' premises. 16 In relation to this incident it was noted that the Coffs Harbour store had two vehicles for use at the time for work off-site. Mr Ilitch had used the Hi-Lux utility while the other vehicle was a Toyota Dyna truck that was equipped with safety straps and a tailgate lifter that allowed a wheel to be secured for inflating. It was intended that the Hi-Lux ute was to be utilised as a back-up for the store. Mr Ilitch had used that vehicle for both work and personal use. Both these vehicles were supplied with a compressor and an in-line air gauge. The in-line air gauge allowed for safer inflation of tubeless and tube-type truck wheels in on-site and off-site applications by increasing the distance between the fitter and the tyre being inflated. 17 Mr Wall noted, on behalf of the company, its deep regret that one of its employees was injured at work and stated that, since the incident, the company was committed to ensuring there was no re-occurrence of such an incident and that commitment was demonstrated by the fact that since the accident there had been a continuous improvement of the company's safety systems and he then dealt in some detail with those matters. It was noted in relation to Mr Ilitch that he was employed by the defendant in January 2000 as a service fitter and had some ten to eleven years' experience in a time prior to that employment in the tyre industry. Upon commencing his employment with the defendant's business, he received an induction to the defendant's business and a site specific induction. 18 Mr Ilitch had acknowledged that he had received and completed the defendant's Guide to Health and Safety in our Workplace training document. Mr Wall said that Mr Ilitch was subject to detailed and extensive occupational health and safety systems and procedures that were in operation across the company's businesses and at the Coffs Harbour store. 19 In relation to actions taken since the incident the following had been addressed: The defendant had purchased an additional set of safety straps for use with the Hi-Lux utility. It had purchased a safety inflation device which was installed on the Hi-Lux utility. A job safety analysis produced on an interim basis was subsequently implemented at the Coffs Harbour store. The company safety policy was revised. The company reinforced its policy of not allowing service fitters to use the Hi-Lux utility when servicing customers. This matter, as apparently was the company's system, was communicated across its operations in Australia to New Zealand as a means of warning employees of this type of risk. 20 After he commenced employment with SPT, Mr Wall undertook a review of the safety system and he identified training assessment and supervision of off-site service fitters as an area in need of improvement. He spoke of the company's commitment to ensuring its policies and procedures were actively promoted and enforced and to that end, in conjunction with the Victorian WorkCover Authority, the company developed a programme to introduce competency based training for all service fitters throughout Australia. That programme formally commenced in October 2005 on the appointment of the companies first field service trainer. There were now two field service trainers covering Victoria, New South Wales and Tasmania. The training programme for field service trainers allowed them to physically assess all service fitters in seven key areas of competency, one of those areas being safe inflation of truck and bus tyres. Seven areas of competency were complemented by separate training units which included updating safe operating procedures. There was a copy of the training units and safe operating procedures for service fitters exhibited and put before the Court. Each field service trainer spent three hours working with a service fitter off-site at a customer's premises and observing the service fitters working behaviours. That training also gave the customers an opportunity to watch how the work should be performed and the company encouraged its customers to contact them if they had concerns about the way in which the work was being performed. 21 It was said that the company had a comprehensive system for managing workplace hazards in place. There were service vehicle check lists that were being performed weekly so that mandatory safety equipment was checked off to ensure it was suitable and fit for the job. There was a company philosophy of 'no-one gets hurt'. 22 Quite an amount of evidence was given about the defendant's commitment to occupational health and safety and quite an amount of documentation was placed before the court. The company was said by Mr Wall to have structured its safety system to ensure compliance with Australian Standard 4801. The company's safety systems covered nine key areas including risk management, information, instructions, training and supervision. In relation to management, the executive team, including the Chief Executive Officer, Vice Presidents and other senior executives met weekly and Mr Wall attended those meetings. He said that accountability for safety was discussed at those meetings and there was a safety report, which he prepared, and there was active and real discussion during those meetings about occupational health and safety issues. 23 In relation to regional managers, the management team of senior managers, regional managers and Mr Wall also, had safety targets built into their key performance indicators. There was payment of performance bonuses correlated to managers' approach to occupational health and safety. Mr Wall was aware of employees having been counselled, demoted and terminated as a result of non-compliance with off-site service safety programmes. He dealt with consultation and communication at weekly consultative meetings which were effectively tool box meetings, the use of a "safety gram" as a monthly publication, the use of "safety alerts", as issues arose and also the approach to risk management. 24 Hazard identification was a key part of the training. Mr Wall was involved in that aspect and had trained in excess of 300 store managers. There were approximately 30 safe operating procedures for larger jobs performed on a regular basis. Emphasis was placed on the importance of job safety assessments. Manual handling was an issue to which particular attention was paid. Attention was also paid to the equipment used so that it was ensured that there was regular servicing of that type of equipment including inspection of electrical equipment and surveillance of vehicles and forklifts. There was a system of workplace audits and inspections. 25 There was a description of the role in that task performed by store managers and regional managers, how Mr Wall received reports from those managers and then made a monthly safety report to the Chief Executive Officer. Detail was given in relation to training and information provided by the company and it was noted that the company was a registered training organisation. That step was taken as part of a broader plan to develop the skills of the employees and that meant that the company was required to meet standards set out under the Australian Quality Training Framework. 26 Mr Wall spoke about the way in which the company dealt with its records in relation to injury reports across the business, how they were disseminated to senior managers, how they were monitored and how the company was able to take steps to address those issues thrown up by incidents so reported. Store managers were trained in how to perform an investigation of an injury, an accident or incident and the company was also taking a number of steps in relation to the rehabilitation of its employees and had an emergency response system in place. 27 In relation to its own purchasing, purchasing managers were required to conform with the company's occupational health and safety standards and there were also safety considerations involved when engaging other contractors and criteria to be met. Mr Wall spoke about the company's commitment to the community and he gave details of that in his affidavit. 28 It was common ground between the parties that the two prior offences committed by the defendant meant that the maximum penalty available in this case was $825,000. In approaching the task of imposing an appropriate penalty, the initial step is to consider the objective seriousness of the offence. I have been assisted by the written and oral submissions presented by counsel for the parties. 29 I note, in the submissions on behalf of the defendant, the frank concession that the vehicle taken to the site by Mr Ilitch was not equipped with a tyre restraint or safety straps that operated to hold the tyre component to the tyre rim and that the vehicle supplied to Mr Ilitch on the day was not adequate for the task of inflating tyres in that it did not have safety straps or a tyre restraint mechanism although there was other safety equipment provided with the vehicle. By its plea the defendant also accepted that it did not ensure that its employees followed the safety procedures it had in place for the inflation of tyres. 30 I accept the description set out in the submissions of the prosecutor that this is an objectively serious offence. In those submissions these factors were recognised and I agree with that submission: "There was an absence of a cage or an appropriate restraining device such that the risk was obvious. The risk involved a real prospect of serious injury and, more remotely, a potential for a grave/fatal injury; ... the defendant was specifically aware of the risk.; the defendant failed to turn a critical mind to the adequacy of its paper system and/or the equipment provided on its service vehicles; and the subject risk was capable of being controlled or eliminated by the use of the simple expedient of properly fixed and fitted safety cage or an appropriate device that could be used to restrain a tyre/wheel whilst it was being inflated such as an hydraulically operated tailgate". 31 I also agree with the observations made about the description of this Hi-Lux utility as a back-up vehicle. It is to be noted that this vehicle was fitted with a compressor and an in-line air gauge so that it could be used for roadside service and was not confined to use at the store. The vehicle was not fitted with a cage or alternate restraining device for the employees who were permitted to use it, and, the risk here was recognised by the defendant's own safety guidelines, in that it nominated that a tyre under pressure was able to explode and may be thrown with such violent force as to become a high speed projectile capable of seriously injuring or killing persons in its path. 32 It follows that this risk was foreseen and what was already in place and what has since been put in place recognised that there were simple and available steps to address the risk. In might be said that this was another accident (often in evidence before the court in exercising this jurisdiction) where it was fortunate that no-one was permanently injured or killed. It could have led to a very serious injury. 33 In relation to general deterrence it is appropriate that general deterrence form an element in setting an appropriate penalty. As to specific deterrence, this company is a large company that employs a significant number of people and it continues in this operation which in some of its aspects places its employees at some risk. It has two prior convictions but those convictions alone do not lead to the imposition of a higher penalty but in my opinion it is appropriate that specific deterrence play a significant role in the setting of an appropriate penalty. 34 The prior record to which I have just referred involves two offences. The first offence, dealt with by an Industrial Magistrate in August 2000, involved a breach of s 15 (1) of the 1983 Act whereby a penalty of $8,000 was imposed in relation to an injury where an employee's finger became jammed in the movement of placing a tyre in a particular machine. It was noted by the Industrial Magistrate that the defendant had already identified the need to address manual handling but this particular incident nevertheless took place and that injury resulted. 35 The second offence was dealt with in May 2004 by Schmidt J and involved an injury to an employee caused by a falling truck tyre, these tyres being removed from a mezzanine floor and being effectively thrown to the ground. her Honour in that case - where the maximum penalty was $825,000 imposed a fine of $61,750. It was said in that case by the prosecutor that the defendant had in place a flimsy procedure for dealing with the safety of the work in question and it was noted in that case that the earlier offence before the industrial magistrate had occurred in another division of the company. Her Honour mentioned that the evidence demonstrated the defendant's thorough and proper reaction to the risk which the accident revealed, and noted also that the evidence showed that the employer had a relatively well-developed safety system and a real commitment to training and observation of its obligations under the Act, but disappointingly that accident had occurred. 36 In this particular case I do not think it is appropriate to conclude that the safety systems of the defendant were mere paper systems. I am satisfied that they were actively pursued but there were gaps and strangely obvious gaps. The material before me indicating what was available to employees seems to assume that this work would be performed on-site where a cage would be available, yet it was an essential part of this operation to perform roadside and off-site work. That may be a reflection of the growth of the company and its various functions but it underlines the need for diligence on behalf of employers, even when they become large organisations, to attend to every aspect of that work to ensure the safety of the workers and others who attend at or near where they perform their work. 37 Before the Industrial Magistrate it was accepted that the defendant was in existence for 25 years. Before this Court it seems to be accepted that the defendant has been in existence for something over 80 years. There are two considerations that arise from that fact. Firstly, it should be accepted that is a good safety record, recognising that there will be aspects of this work where employees perform hazardous functions being functions that put them at risk of injury. There might be a number of others who do clerical and administrative work who may not face that type of risk or danger. The second thing to note about it is that in a relatively short time there have been two offences. Those matters are to be taken into account together with the other subjective features to be considered in mitigation of the penalty. 38 I accept there was an early plea in relation to this matter. There were a number of mentions but, on the day that the amended application for order was filed in court, the plea of guilty was entered by the defendant. In those circumstances the defendant should receive the benefit of a 25 per cent discount on the penalty to be imposed. Although there were gaps in the safety system demonstrated by this incident, I accept that there was a very detailed existing system of safety, as Schmidt J found. There was a commitment that demonstrated attention to safety and training and the steps taken after the incident involving Mr Ilitch confirm that aspect of the defendant's approach to safety. It appears to be a good corporate citizen. It has, importantly, co-operated with the WorkCover Authority and has expressed its contrition. All those matters are taken into account in mitigating the penalty. 39 Having regard to those matters the court makes the following orders: (1) The defendant is found guilty of a breach of s 8(1) of the Occupational Health & Safety Act 2000 as particularised in the Amended Application for Order in matter IRC 5976 of 2005 to which the defendant has pleaded guilty. (2) The defendant is fined the sum of $105,000 dollars with half that sum to be paid to the prosecutor by way of moiety. (3) 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. The prosecutor is and was at all material times an inspector duly appointed pursuant to clause 11 schedule 3 of the Occupational Health & Safety Act, 2000 under division 1 of Pt 5, and empowered under s106(1)(c) of the said Act to institute proceedings in the within matter. 2. TYRE MARKETERS (AUSTRALIA) LTD [ACN 004 098 346] ('the defendant') is and, at all material times, was a company duly incorporated with its registered office at 180-196 Hume Highway, Somerton in the State of Victoria. 3. At all material times: (a) The Defendant was an employer; (b) The Defendant was a wholly owned subsidiary of Goodyear Tyres Pty Limited [ACN 004 145 433] ('Goodyear') and Pacific Dunlop Tyres Pty Limited [ACN 004 452 984] ('Pacific Dunlop'); (c) The Defendant owned and operated a business known as"Beaurepaires for Tyres" ('Beaurepaires'), which conducted a tyre retailing and repair business from a number of outlets within New South Wales; (d) The Defendant employed workers to work in the business known as "Beaurepaires for Tyres" (Beaurepaires") and in particular, to work at premises known as at the Beaurepaires' Coffs Harbour store, situated at the corner of Beryl Street and Pacific Highway, Coffs Harbour, in the state of New South Wales; (e) The Defendant employed Michael Ilitch. Mr Ilitch had been employed in the tyre industry for approximately 10 – 11 years. He had been an employee of the defendant since February 2000.; (f) Mr Ilitch's duties, amongst other things, involved road service work including the repair and fitting of tyres (including truck tyres) at premises, owned and/or occupied by various clients of the Defendant that were remote to the defendant's premises at Coffs Harbour; (g) The defendant provided vehicles to its staff for road service work. Mr Ilitch was provided for use at work a HiLux utility ('the HiLux ute') registration number TYC977. The vehicle was used as a 'road service vehicle', for use in attending remote sites; (h) On 12 December 2003, the defendant requested that Mr Ilitch attend the premises of Fews Transport Pty Limited ('Fews') at 5 Wingarra Drive, Coffs Harbour, in the State of New South Wales (the 'site') for the purpose of fitting two new tyres previously supplied to Fews by the defendant and repairing second hand and retread tyres to be provided by Fews; (i) Mr Ilitch attended Fews site in the HiLux ute. At the time of the incident, the HiLux Ute did not contain safety straps and was not fitted with a safety cage or any other restraining device. The vehicle did contain reflective vests, ear muffs, glasses, witches hats, signs, spotlight and a revolving light; (j) The distance between Fews site and the defendant's premises was approximately 8 to 10 minutes driving time. Details of the Incident 4. When Mr Ilitch arrived at Fews he was shown the new tyres and a number of tyres and wheels some of which he was asked to re-groove and repair after fitting the new tyres. Mr Ilitch determined that some of the tyres he was shown were damaged and not suitable to be fitted. He identified five tyres that would be suitable as spares and proceeded to re-groove and repair those tyres before fitting and inflating the tyres. 5. At approximately12.30pm on 12 December 2003, Mr Ilitch whilst in the process of inflating a truck tyre as part of the work that he was carrying out at Fews, sustained an injury as a consequence of the tyre exploding and striking him in the back ('the Incident'). 6. On 12 December 2003, pursuant to a request by Fews to the Defendant's Beaurepaires outlet in Coffs Harbour, the worker attended at the Fews Transport Pty Limited ('Fews') site at 5 Wingarra Drive, Coffs Harbour, in the State of New South Wales ('the site') in order to repairing and fit truck tyres for Fews. 7. At the time that the incident occurred, Mr Ilitch was working alone in the workshop of Fews. The HiLux ute had been reversed into the workshop. 8. The incident occurred while Mr Ilitch was inflating a Tubeless, Michelin First Cap retreaded tyre by means of a safety air gauge with the wheel up. The wheel was not restrained through the use of safety straps, a safety cage or any other restraining device. As the tyre was inflating about 3m from where he was sitting Mr Ilitch heard a creaking sound. He knew this was a warning sound and approached the safety valve to turn it off when the tyre exploded. The wheel landed 1.5m from where it had been standing. Mr Ilitch estimated he was 1.5m to 2m from the tyre at the time of the incident. 9. Immediately after the incident Mr Ilitch noticed that the bead section of the tyre was torn away from the rim and deformed. 10. The safety air gauge utilised by Mr Ilitch was not found to be defective. The gauge used on the day allowed a tyre to be inflated up to 4.4m away from an operator.[PB at Tab 5.15]. The gauge used allowed the operator to stop the air flow at about 110 PSI. The pressure could be stopped at any point if the operator had any concerns. [PB Tab 4 at Q18] 11. Offers made by Mr Frew and the defendant for Mr Ilitch to attend the hospital were rejected by him. Mr Ilitch continued his work schedule and attended another client site that afternoon. After the conclusion of his work on the day of the Incident, Mr Ilitch commenced annual leave and was not required to attend at work until 5 January 2004. A medical certificate stating Mr Ilitch was unfit for work was provided to the defendant on 5 January 2004. 12. As a consequence of the tyre exploding and striking the worker in the back, the worker sustained trauma to his lumbo-thoracic spine, which prevented him from performing his normal work for a period in excess of seven days following the incident. Failures of the Defendant 13. At the time of the incident, the HiLux Ute did not contain safety straps or any other form of restraining device for use when inflating tyres at sites remote from the Defendant's premises at Coffs Harbour. 14. Prior to the incident, the Defendant had not undertaken a proper risk assessment of the use of the HiLux Ute as a road service vehicle in situations where it was being used in the inflation of tyres at sites remote to the Defendant's premises at Coffs Harbour. 15. Further, the worker was permitted to use the HiLux Ute for undertaking work remote to the Defendant's premises at Coffs Harbour. 16. There was an alternative vehicle, a Toyota truck, registration PCK196 that was properly equipped to be used for the work of fitting truck tyres remote to the Defendant's premises at Coffs Harbour. However, the worker was not required to use that vehicle. 17. Prior to the incident the Defendant did not ensure that the work of fitting tyres remote to the Defendant's premises at Coffs Harbour was conducted in accordance with its own published safety requirements. Attached is a copy of "Working Safely: A guide to health and safety in our workplace" which the Defendant had published prior to the subject incident. 18. Prior to the incident, the Defendant did not ensure that its employees, and in particular, the worker, received sufficient information, training, instruction and supervision in relation to the work of the inflation of truck tyres remote to the Defendant's premises at Coffs Harbour. 19. Prior to the incident, the Defendant did not ensure that at all times the HiLux Ute contained safety straps or any other form of restraining device for use for work including the fitting of truck tyres remote to the Defendant's premises at Coffs Harbour. 20. Prior to the incident, the Defendant did not have in place a safe procedure for the work of inflating truck tyres at sites remote to the Defendant's premises at Coffs Harbour in situations where the work was being performed using the HiLux Ute. oo00oo 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.