Workcover v Gunnedah Leather Processors P/L [2014] NSWDC 187

District Court New South Wales

Medium Neutral Citation: Workcover v Gunnedah Leather Processors P/L [2014] NSWDC 187 Hearing dates: 5 June 2013 Decision date: 23 May 2014 Before: Judge MJ Finnane QC Decision: See paragraph [31] Catchwords: CRIMINAL - Workplace - accident - serious injury - unqualified forklift driver - ongoing disability - health and safety - excessive speed - actions contrary to traffic management plan SENTENCE - plea of guilty - plea entered at earliest opportunity PENALTY - specific deterrence - fine Legislation Cited: Occupational Health and Safety Act 2000 Category: Principal judgment Parties: Workcover (Prosecutor) Gunnedah Leather Processors (Defendant) Representation: I Latham (Prosecutor) D O'Neill (Defendant) File Number(s): 2012/355678

Judgment 1Gunnedah Leather Processors were summoned to appear before this Court charged with an offence under s 8(1) of the Occupational Health and Safety Act 2000. The claim was that there was a risk of injury to the health and safety of Kevin Coe and Craig Baird, namely the risk of moving forklifts hitting them while working or walking in the drum aisle at the premises. 2The particulars of the charge were that the defendant failed to take and should have taken the following steps: (1)It should have ensured a safe system of work for pedestrian and forklift traffic at the premises, specifically within the drum aisle by marking and enforcing the use of a pedestrian walkway across the drum aisle; and (2)Ensuring the safe use of forklifts at the premises specifically by governing down the forklifts used in the drum aisle to a set speed or installing speedometers on them and enforcing the signpost at speed limit. 3The particular offence is said to have occurred on 4 January 2011. Apart from an agreed statement of facts to which I will refer briefly, the prosecution tendered some CCTV footage that showed exactly how the accident happened. That footage in itself is very compelling watching, I watched it quite a number of times. 4The defendant is a leather tannery and processing plant and it took over premises at which the offence took place in 2009. With the takeover of the premises it also took over a number of employees who worked for the previous business. A man named Kelly was employed as a worker in the premises; he worked on the treatment of hides and he is also a forklift driver; Mr Coe, who was the man injured in the accident was his supervisor. 5Mr Kelly had been working for the defendant for approximately two years and drove a forklift, although he did not actually have a forklift licence. It is relevant to point out here that the accident is in no way contributed to by the fact that Mr Kelly did not have a forklift licence; he clearly knew how to work a forklift. The accident was caused to a great extent because of the way in which he operated the forklift. 6The chemical aisle or drum aisle as it is sometimes known, is a long concrete aisle between what appear to be some large revolving drums on one side and shelves and equipment on both sides of the aisle. It is approximately 70 metres long and 6 metres wide and it is approximately eight metres from the eastern wall of the building; it runs north, south and it is in fact an aisle that was treated by the employer defendant as a pedestrian exclusion zone, that is, a zone in which pedestrians were prohibited. However, there were no markings or delineations or barricades of any kind to indicate that it was a zone of this type and there was nothing to prevent access to it by pedestrians. Mr Coe was a supervisor and in the normal course of his duties would walk around the factory premises and would cross this aisle despite the prohibitions. The prohibitions apparently not apply to him as such. 7Forklifts would regularly move up and down the aisle. There are approximately 15 forklifts. The one involved in this accident was a gas-powered forklift. It did not have a speedometer. 8I have examined the film a number of times and it is clear to me that at the time of impact between the forklift and Mr Coe, the forklift was not carrying anything on the front of it that would have impeded the vision of the driver. To some extent, his vision would have been impeded because of the fork itself, but from my looking at the cabin through the film, it would appear to me that he would have had a vision that would enable him to look ahead if he wished to do that. 9What happened on 4 January was that about 9am Mr Coe, wearing high visibility clothing, came from the drum side of the aisle to the chemical storage side of the aisle. It is clear to me from my looking at the film that he walked straight out into the aisle, walked in a diagonal fashion and did not look to his right or to his left. The forklift was approaching him at a speed which I would think would be well in excess of five kilometres an hour and looked to me more like 20 or 30 kilometres an hour. 10It struck him and it is obvious to me, from my looking at the film, that he did not appreciate that it was anywhere near him until it actually struck him. He did not turn and look until the vehicle had actually hit him. He had a disability at the time, in that his left eye did not actually exist - he had an artificial left eye. Now what happened at the time too, was that another employee Mr Baird who is mentioned in the summons, was operating a jackhammer on the side of the aisle opposite to that in which the revolving drums were operating. 11The sound of the jackhammers drowned out all other sounds in the premises including the sounds of the forklift. There could be no doubt that that would be so, quite apart from that being said in the agreed statement of facts. Mr Baird is shown in the film working in a number of positions moving the jackhammer to a number of places and clearly digging up concrete, he was wearing what appeared to be a full face, or full head mask. There were no barricades anywhere around him to indicate he was present. Mr Coe was wearing a brightly illuminated safety jacket, Mr Baird was not. He was wearing a jacket that had some white bands around it, but certainly it was not nearly as well illuminated as the jacket of Mr Coe. 12The forklift passed Mr Baird at a distance of one to two metres from him. Immediately after the accident Mr Baird looked up, took off his mask, threw it on the ground and ran out of sight waving his arms. Mr Coe was lying on the ground slightly moving. Mr Coe came from a point where his presence would have been invisible to anybody in the aisle and he clearly acted as if he did not expect that there would be any traffic in the aisle. 13The defendant had specified that the speed limit was to be 5 kilometres an hour and on some previous occasions, Mr Kelly the driver had been disciplined for speeding and for using his mobile phone whilst driving the forklift. I have mentioned already Mr Coe's prosthetic left eye, the effect of the impact was to turn him round and fracture the left eye socket, he has been permanently disabled from employment since the accident. 14He suffered traumatic brain injuries, fractures to the base of his skull, multiple facial fractures with residual expressive and reception aphasia, visual agnosia and executive dysfunction. He has not returned to work, although he did give an interview to the Workcover authorities. The defendant factory had before this accident undertaken risk assessments involving forklifts and it had undertaken other risk assessments. It had acted to try to redress the very unsatisfactory way in which the previous factory owner had conducted itself. 15A traffic management plan was devised, Mr Coe was involved in the implementation of the traffic management plan and ten control measures were recommended, they included the wearing of high visibility clothing, fitting a forklift with beepers and lights, a rule that forklift operators had to give way to pedestrians, induction training for moving plant and a traffic management plan, a need for forklifts to use the reverse, that was particularly if they were carrying a load, the driver was required to drive in reverse so that he could see anybody who might be behind him because with a load on front he could not see anything and also the installation of safety mirrors. 16The traffic management plan also included the marking of pedestrian exclusion zones and that could have involved putting up actual barriers. However, these steps were not taken before the accident. One of the reasons for not putting the markings on the floors was that the floors were greasy because of the nature of the chemicals used in the plant to treat the hides and any painting had to be conducted during the factory shutdown. 17No speed limit signs indicating the maximum speed was 5 kilometres an hour had been installed but all the employees, including Mr Kelly, had been told that was the maximum speed. The forklifts did not have speedometers nor had they been governed down to prevent them exceeding the speed limit. 18Contrary to the traffic management plan, the company did not ensure that Mr Kelly actually had a certificate of competency or licence to operate the forklift, and I have referred to this earlier. He had in fact undertaken a course that assessed him as competent but had not actually submitted the assessment for processing and conversion to a licence. He had provided a copy of the assessment to the defendant. 19The injured worker, Mr Coe, who had a supervisory position in the premises, had been the subject of a performance review that indicated his performance needed improvement. But in fact the company did not take any steps to ensure that he improved his safe work practices. I am not quite clear exactly what safe work practices should have been improved because the agreed facts do not indicate that. 20Mr Coe was Mr Kelly's supervisor and had disciplined Mr Kelly on two earlier occasions, once for speeding. In my view, Mr Coe by marching out into the aisle without looking one way or the other, was taking a risk for his own safety, particularly since it was accepted that forklift vehicles did go up and down this aisle. And he must have been aware at the time he walked into the aisle that the man with the jackhammer, Mr Baird, was working away vigorously and there was a lot of noise. 21However, clearly enough, it could be said that Mr Kelly should have seen him. If he was keeping a proper lookout he should have seen him. It is hard to understand how he did not see him. Mr Kelly had not been inducted or trained in safety issues or precautions to deal with pedestrians interacting with forklifts. He had been inducted in the operations of the forklift but not in relation to safety. It is obvious, however, he had been told to behave in a better fashion on a couple of earlier occasions. 22The company has now been given a notice requiring it to ensure that pedestrians and forklift traffic do not occupy shared pathways. The company, it has to be said, gave a final warning to Mr Kelly about his unsatisfactory performance following this accident. It has also taken steps to revise and update the risk assessment for forklifts and amended the control measures and the control measures they have implemented include governing down the speed of forklifts. It implemented all the outstanding matters in the traffic management plan that had not been implemented at the time. They have marked the exclusion zones, they have marked pedestrian walkways, they have bollards and safety chains and they have put push button timed flashing lights at various points to indicate to any forklift operator that pedestrians are in the area. 23Apart from that, I have been supplied with materials supplied by the solicitors acting for Mr Coe putting forward a victim impact statement which Mr Coe is not capable of doing. I have looked at that victim impact statement. It is a very sad statement as most of the victim impact statements I have ever read are. It is clear that Mr Coe now needs the constant care of his wife. He suffers from very severe injuries. He has no recollection of the circumstances of the accident and his losses are permanent. He has been kept on the payroll of the company and the company have taken steps to visit him and to support his family. 24I have read the report of the psychiatrist who is treating him. It is very sad. It is clear that he will be in need of permanent care for the future. 25I am satisfied too from material supplied by the company in the form of an affidavit of Gregory Stephen Osborne with a large number of annexures that the company is a company which has a commitment to workplace health and safety. This was a very unfortunate accident and I am satisfied that since the accident they have taken extensive action to review and improve all their systems in the premises. There is no doubt if they had taken steps before the accident to tell Mr Kelly to drive carefully and at 5 kilometres an hour, they had issued safety vests, and Mr Coe was wearing one, they had not put the markings on the lane and I suppose it could be said they did not make allowance for what I would call the idiot factor, that is, that some workers behave in a totally idiotic fashion and will ignore instructions because from time to time they just could not be bothered taking notice. That appears to be so with Mr Kelly. He was told to drive at five kilometres an hour. They did not have the time regulated on the forklift to prevent him going at a faster speed than that. If they applied what I would call the idiot test they would have done that. The employers have to make allowance for the fact that people will act in a stupid fashion. They cannot assume that people will act reasonably or intelligently. They have got to set up systems that enable people to work safely and that have regard to the fact that some people act foolishly and capriciously. 26I am convinced on the affidavit of Mr Osborne, and it is not disputed by WorkCover, they had taken steps before this accident to review all their procedures. The unfortunate fact was they had not actually implemented all of them. It could be said Mr Baird, who was placed at risk perhaps of being struck, also behaved in a foolish fashion. He was aware of the need to put barriers around himself when conducting this work; that was a requirement of the defendant. He, however, chose not to do it. Again, all that can be said is the defendant should have had somebody probably going around and saying "Right, you've got to do that work, where are the barriers? Put them up now." It is a sad thing that people have to treat their employees as babies at times but I think that is in fact what they have to do. 27There is little likelihood, in my view, that Mr Baird would have been struck. The forklift driven by Mr Kelly went along a straight line. It was not diverging, it was not wandering all over the corridor, it would be hard to see how it would have struck Mr Baird. Nevertheless if the barriers had been up around him that would have created extra warning to the forklift truck driver that somebody was working there and may have caused him to slow down. 28I think it is regrettable too that the supervisor, as Mr Coe was, did not advert to the fact that forklifts could be in this area. Now, partly he was deceived I am sure because of the noise created by the jackhammers. He cannot be criticised nor condemned and I am not seeking to do that. 29There is no doubt that the defendant continues to support Mr Coe. There is no doubt the defendant has since the accident taken steps to totally improve the situation and of course the defendant did alert WorkCover at the earliest opportunity and did plead guilty. 30The question then arises as to what penalty should be imposed. They have not committed any previous offences. They are not likely to commit any more. Any penalty imposed should have regard particularly, not exclusively but particularly, to the principle of general deterrence. Other factory owners must be aware that even if the factory owner behaves reasonably and properly and takes steps to implement safety measures but does not finally implement them it can be made liable and can be the subject of a fine. 31In my opinion the company was at some fault but not at extraordinary fault. It would not be appropriate to impose an enormous fine and I impose a fine of $20,000. I order the defendant to pay the costs of WorkCover and I award a moiety to WorkCover. 32As I understand it, the parties will resolve between themselves the costs. If they cannot resolve it the matter can be dealt with in the usual way by reference to an appropriate cost assessor. 33I don't think there's anything else I need do, is there? 34PROSECUTOR: No, your Honour. 35HIS HONOUR: Thank you very much for your presentation. I say finally because these proceedings came before me last year. The only reason I have been delayed is that there was an application that ultimately got to the Court of Appeal known as the Empire Waste decision which caused applications to be made to me in this case and in other cases that I not give a decision until that case had been determined. The Court of Appeal determined it some time ago but application was sought for special leave to the High Court and that was abandoned I think only about a week and a bit ago. So when this was drawn to my attention a week and a bit ago I then brought the matter back to give judgment. And I make that plain now in case anybody at any future time should ponder the question why it's taken so long to give a judgment. 36I thank the parties and I will now withdraw.