Prosecutions

It appears that due to the COVID-19 pandemic, there have not been any prosecutions during this period, and consequently no update to prosecution outcomes in Victoria - to find out whether there are any new prosecutions before next week, check WorkSafe Prosecution Result Summaries and Enforceable Undertakings webpage.

This is not the case for some other jurisdictions - in NSW Three PCBUs fined $765k for multiple WHS breaches

Last week District Court Judge Wendy Strathdee sentenced Komatsu Pty Ltd, Bay Trusses & Frames Pty Ltd and Hadcon Constructions Pty Ltd in separate proceedings. 

They all pleaded guilty to breaching sections 19 ("Primary duty of care") and 32 ("Failure to comply with health and safety duty–Category 2") of the NSW WHS Act, and faced maximum fines of $1.5 million each.

Case 1:

In early 2016, Komatsu Pty Ltd supplied a bulldozer to a Veolia Environmental Services Pty Ltd facility in Tarago. Komatsu had modified the bulldozer by installing an electric winch system for lowering the 290kg belly plate, but fitted a wire rope to the system's hoist that didn't match the hoist manufacturer's recommended wire rope diameter or breaking strength. 

In February 2017, Komatsu sent a field technician to service the bulldozer, then instructing him to remove and clean the vehicle's cooling system, which involved removing the belly plate's retaining bolts and lowering the plate to the ground. After he finished cleaning the cooling system, he reinstalled it and used the winch to raise the belly plate, before moving beneath the plate to reinstall the retaining bolts, at which point the wire rope snapped and the plate fell, striking him on his hard hat and the right side of his head and face.

He sustained numerous injuries, including a traumatic brain injury, multiple skull and facial fractures, loss of hearing in his right ear, cognitive impairment, back and neck injuries, and post-traumatic stress disorder.

Judge Strathdee found the company had a "golden rule" prohibiting workers from entering the "fall zone" of a suspended load, but didn't train the technician on how to comply with the rule while re-bolting the belly plate, or provide him with any specific training or instructions on how to safely remove and reinstall the bulldozer's cooling system.

The Judge noted that in January 2015, a Western Australian mechanic was killed when a Komatsu-supplied bulldozer's belly plate, held up by a single external hoist, fell and crushed him after the bolts were removed. A transport and exploration company was fined $110,000 over the death. "[The Western Australian events] allow this Court to come to the conclusion that [Komatsu] ought to have been aware that there had been a death as a result of the belly plate on one of their bulldozers and to that extent this [Veolia] incident was foreseeable, which affects the relative seriousness of the offence," she said in finding Komatsu's offence fell within the mid-range of objective seriousness. She found an appropriate fine for Komatsu was $500,000, before reducing it by 25 per cent to $375,000 for its guilty plea, and ordering it to pay $40,000 in costs.

Case 2:

In July 2017, the contract truck driver was helping a forklift operator load floor sheets, frames and trusses onto the truck at one of Bay Trusses and Frames Pty Ltd's three operational sites when he fell from the trailer and sustained a traumatic brain injury, as well as spinal cord damage and shoulder injuries.

In October 2011, a worker was killed in a fall from the top of some frames and trusses on a Bay Trusses trailer. The PCBU pleaded guilty to safety breaches and was sentenced in August 2014. From these events the PCBU "must have understood that its work health and safety procedures were most inadequate. Yet, less than three years later, [another worker] fell from one of [its] trucks and was badly injured", Judge Strathdee said.

After the 2011 incident, the company had conducted a risk assessment that concluded truck drivers could safely climb on truck loads, but the document hadn't been reviewed for seven years, and wasn't prepared specifically for the incident site, which had uneven, sloping ground and limited space for vehicles, Judge Stathdee found. She fined Bay Trusses $300,000 after a 25 per cent discount, plus $27,500 in costs, after raising concerns about the PCBU's failure to respond to a 2011 fatality.

Case 3:

The Judge fined Hadcon Constructions Pty Ltd $90,000, also after a 25 per cent reduction, after the sole director of subcontractor Tiger Construction Group Pty Ltd fell through scaffolding at a Hadcon building site and struck his head on a concrete balcony, and was killed. 

At the time of the June 2017 incident, the scaffolding on the six-storey residential apartment development in Lidcombe had been altered and planks were missing or not secured in the level-four area where the director fell. The Judge found that although Hadcon had conducted inspections of the scaffolding prior to the incident, but these were inadequate in that they failed to identify significant safety issues. 

"[Hadcon] did not prevent the unauthorised alteration of scaffolding on the site by way of adequate supervision and/or appropriate disciplinary action against those workers altering scaffolding, such as excluding workers from the site or issuing non-conformance notices," Judge Stathdee said. She found that Hadcon required its site manager to instruct workers not to alter the scaffolding, but didn't take steps to verify whether the manager complied with the direction. 

Source: OHS Alert

 

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