In brief - courts are moving to impose significant penalties against both Directors in Western Australia and operating companies in New South Wales
In the Esperance Magistrates Court in Western Australia, a Director of a shed building company was sentenced to two years and two months imprisonment following a serious workplace incident in 2020.
The Director was ordered by the court to serve eight months immediately with the remaining 18 months suspended for 12 months. He was also fined the amount of $2,250 for operating a crane without the appropriate licence.
In 2020, the building company, MT Sheds (WA) Pty Ltd, were installing roof sheets on a large machinery shed that they were constructing on a farm for agricultural purposes.
On the day of the incident, a strong wind lifted a sheet from the pack of roof sheets they were working near causing two workers to fall from the roof area. One worker fell approximately nine metres from the apex of the roof suffering fatal injuries whilst the other worker fell approximately seven metres from the roof's edge near the gutter line suffering multiple fractures.
Both MT Sheds and the Director were prosecuted for the offence of gross negligence in failing to have the safety control measures in place for working at heights. It was alleged that the Director consented to or was neglectful in the breach of gross negligence by the company.
The company was fined $550,000 from a maximum penalty of $2.7 million.
The Director faced a maximum penalty of five years imprisonment and a fine of $550,000.
This is the first imprisonment of a Director under the current penalty regime of the Occupational Safety & Health Act of Western Australia.
Failure to implement traffic management plan led to $450,000 fine
On the 21 May 2021, the New South Wales District Court convicted and fined a concrete production company for breaching the Work Health and Safety Act in failing to implement its reassessed traffic management system.
On 20 September 2017, the company, in conducting its concrete batching business, managed the movement of concrete mixing trucks and delivery trucks at its site in Alexandria in Sydney. The high traffic area at its site involved up to 60 vehicles on the site per hour. The traffic area included a fuel tank station.
On the day of the incident a fuel truck delivery driver, whilst positioned at the fuel tank station, inadvertently walked into the path of a concrete mixing truck and was contacted by the tyres of the truck. The driver received significant injuries.
Risk of vehicle and pedestrian interactions
The risks in the interaction of the movement of traffic and pedestrians at the site had been identified as needing to be assessed and appropriately managed.
The company arranged for their traffic management system to be assessed and updated.
Unfortunately the company failed to implement the recommendations from the traffic assessment review. The walkways that were required to be painted or marked in the vehicle movement areas had not been undertaken.
The court found that the company did not have an adequate system for managing the risk of pedestrian and vehicle interactions or a means of protecting pedestrians from vehicle collisions.
Following the incident, the post incident traffic management plans were developed for several different vehicles including deliveries and visitors, concrete mixing trucks and various tippers. Each of the plans specific to vehicle types were allocated a specific route when on site.
The new traffic management plans contained provision for new coloured pedestrian walkways where the walkways were colour coded in the following way:
New Induction for all delivery drivers
Further a post incident traffic and pedestrian management induction was implemented and directed workers to:
"stay in or with your vehicle at all times unless you can immediately access a designated walkway safely"…
"if leaving your vehicle use yellow and green designated walkways"
Following the incident all delivery drivers were inducted into the site regardless of the length of time of their delivery.
The court assessed the objective seriousness of the offence and the degree of foreseeability regarding the gravity of the risk.
The court determined that the appropriate fine was $600,000 and reduced by 25% to reflect an early plea. The company was convicted and fined $450,000 and ordered to pay the Prosecutor's costs of $43,413.26.
How can businesses manage traffic risks for vehicles and pedestrians?
It is evident that the courts are moving to impose significant penalties against both Directors in Western Australia and operating companies in New South Wales.
The implementation of an appropriate safety management system regarding traffic management is important for all businesses to have in place to manage the risk of the interaction of both vehicles and pedestrians.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.