A company’s usual practice of leaving keys in the ignition of a skid steer and other mobile equipment at their depot so that they can be accessed at any time has contributed to the death of an employee.
HSG Asphalt Pty Ltd has been fined $80,000 without conviction for their part in the death of their employee at a workplace in Bangholme.
HSG Asphalt and a related company shared the space to store work vehicles including trucks, pavers, bobcats, trailers and the skid steer involved in the fatal incident. On the day of the incident in September 2022 four workers from both companies were sitting on chairs near their cars drinking alcohol at the Bangholme depot at the end of their workday.
The director of HSG Asphalt returned to the workplace to empty a load of “material” in the yard and spread it around using the Skid Steer. The director parked the Skid Steer and left the key in the ignition of the vehicle as was usual practice. The director then left the Workplace and there was no further reason for the Skid Steer to have been used after the director left.
Christopher Bell, an HSG Asphalt employee, started the skid steer and began driving it around erratically – driving in circles, making jokes and spreading dirt. He then drove the skid steer towards one of his workmates who remained in his chair and stated that he would not move. Mr Bell then tried to use the bucket to flick his workmate off his chair, reversed the skid steer, did a turning manoeuvre, and drove full throttle towards the group of workers. He drove straight over the top of his workmate then attempted to reverse, running him over up to three times and pinning him underneath the machine.
The 34-year-old man died in hospital that evening, having sustained significant crush injuries.
Mr Bell was arrested and breathalysed. The evidential breath test (EBT) returned a reading of 0.122. In August 2023 he was arrested in Winston Hills in Sydney and faced Paramatta Local Court, where his extradition to Victoria was granted. He was charged by Victoria Police with manslaughter by criminal negligence. In July 2024 he pleaded guilty and was sentenced to seven years imprisonment, with four years non-parole.
Mr Bell could not be charged with workplace manslaughter under s.39G of the OHS Act as that offence only applies to an employee if that employee is also an officer of the company.
HSG Asphalt Pty Ltd was charged under section 21(1) of the Occupational Health and Safety Act for failing, so far as reasonably practicable, to provide and maintain a safe workplace.
WorkSafe alleges the company also breached section 21(2)(a) of the OHS Act by failing to provide and maintain a system of work for securely storing operating keys for items of plant, including the skid steer, to prevent untrained or unauthorised people gaining access.
The company faced one further charge under section 23(1) of the OHS Act for failing to ensure people other than employees were not exposed to health and safety risks.
The Court noted that while the risks of serious injury or death are well known and obvious if an untrained or unauthorised person operates mobile plant, it is difficult to quantify the likelihood that an unauthorised or untrained employee might deliberately operate such plant. The risk of an employee engaging in such extreme behaviour that it amounts to manslaughter by criminal negligence is at the margins of foreseeability and in this case, the employee in question was a 51-year-old man, not an impetuous adolescent.
Nevertheless, HSG Asphalt should have implemented a system of storing operating keys in a secure lockbox with access restricted to authorized employee operators.
“Skid steers and other mobile plant are not toys and can be extremely dangerous in the wrong hands, including anyone under the influence of drugs or alcohol as well as those who don’t have appropriate training,” said Sam Jenkin, WorkSafe Victoria Chief Health and Safety Officer.
“Employers need to do everything reasonable to secure equipment and ensure it is only used for authorised work by appropriately trained workers,” Jenkin added.
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