Berry Brothers Engineering Pty Ltd (BBE) provides manufacturing and maintenance services in Queensland and Victoria. At their Victorian site in Drouin, they manufacture spreaders, side tippers, field bins and trailers for agricultural purposes.
In September 2022 BBE were engaged to manufacture and supply a custom tandem axle dog trailer for an agricultural company. The trailer had ramps which could be raised or lowered by a hydraulic pump which was energised by a DC power pack using electricity from a 12V sealed lead acid battery. The battery and hydraulic pump were mounted on the side of the trailer in a metal toolbox. The manufacture of the trailer was completed, and the item was delivered to the purchaser in March 2023.
In May 2023 two employees of the agricultural company were delivering fertilizer using a spreader truck and a front-end loader, both transported on the manufactured trailer. As they completed the delivery task one employee prepared the spreader truck and trailer to be returned to their depot. He connected the spreader truck to the trailer and connected all the lines, leaving the truck running while he did so. He then loaded the front-end loader onto the trailer and secured it with chains.
To lift the loading ramps, the employee moved to the control box and when he pressed the up button, an explosion occurred. The employee was thrown into the air and landed on his side. Emergency services were called and the injured employee was transported to hospital by helicopter. He suffered multiple pelvic fractures, requiring the insertion of a plate, and the amputation of his right leg above the knee.
WorkSafe’s investigation showed that the battery and hydraulic pump storage box did not have a vent fitted to it to allow for air to enter the storage box or for gas emitted from the battery to exit the storage box.
This created a risk that hydrogen and oxygen gas produced during normal battery operation and charging could form an explosive atmosphere around the battery. If this explosive atmosphere formed in the metal storage box was exposed to an ignition source, there was a risk that an explosion could occur and injure or kill a person in the vicinity.
Persons who manufacture plant that they know, or ought reasonably to know, will be used in a workplace are required by s.29 of the OHS Act to ensure that it is manufactured to be safe and without risks to health if used for the purpose for which it was manufactured. Manufacturers are also required to arrange for testing to ensure the safety of the plant, and to provide adequate information to ensure that the plant is used in a safe manner.
The Court heard that at the design and manufacture stage no consideration was given to venting the box and there was a conscious decision by the BBE to store the battery that way to avoid corrosion. They made no enquiries with the battery supplier as to how to install and store the battery and did not obtain the safety data sheet for the battery, which stated that the battery should only be used in well-ventilated areas as gases can form an explosive atmosphere.
The likelihood of the risk eventuating was significant and high due to the accumulation of hydrogen gas and an ignition source which could be as simple as static electricity. The likelihood became more significant due to the injured worker’s employer overcharging the battery, which was not necessarily foreseeable by BBE.
BBE was sentenced to a fine of $50,000 without conviction. The maximum applicable penalty value for a breach of s.29 of the OHS Act at the time of the incident was approximately $1.66 million.
In February 2025 the Sentencing Advisory Council released a report to the Victorian Government making 12 recommendations for reform regarding the sentencing of OHS offences in Victoria. This included significantly increasing maximum penalties for breaching OHS duties in line with community expectations. The Victorian Government is yet to provide a response to this report.
Read more: Prosecution Result Summaries and Enforceable Undertakings | WorkSafe Victoria