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Prosecution Details

Offender Gerald James Shields


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Charge Charge Number Offence Date Date Convicted Regulation Section Penalty Provision Penalty Imposed Date Sentenced
1 RO2873/12 24 May 2010 6th September 2012 3A(2)(a)(i) $12,000.00 6th September 2012
Description of Breach(es)

Being an employer, failed, so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards; contrary to sections 19(1) and 19A(3) of the Occupational Safety and Health Act 1984.

Background Details

The Accused provides tree cutting services.  This work is carried out primarily using chainsaws. Trees are accessed principally in two ways: either through climbing or via a truck-mounted elevated work platform (EWP; sometimes referred to as a cherry picker). Once branches of the trees are cut down, a ground crew collects the branches and feeds them into a wood chipper. 

The Accused was contracted by the Department of Housing and Works to carry out work at 26 Harley Way in Medina.

On the morning of Monday 24 May 2010 the Accused and four employees of the Accused went to 26 Harley Way in Medina.

The Accused and one of his employees elevated the EWP and recommenced cutting branches from the trees using a chainsaw. 

The employee was operating the EWP controls and extended the booms to their full length (platform floor height of 13.8 metres; nominal working height of 15.8 metres) to cut a limb off a tree. As the employee was lowering the lower boom, the front passenger side stabiliser leg sunk into an old drain or soak well in the ground.

The EWP tipped over, the boom struck the ground and the employee and the Accused were ejected from the bucket and landed on the roof of 32 Harley Way, Medina.

As a result of this incident, the Accused suffered minor scalp injuries, while the employee suffered a crush injury to his right wrist and forearm with residual ulna nerve dysfunction. Medical practitioners certified that he was totally unfit for work from 24 May 2010 until 4 August 2010.

Previous occurrences of EWPs tipping over, or of employees being thrown out of EWP baskets, have resulted in fatalities, brain damage and other serious injuries.

Failure to use spread plates

The EWP is fitted with stabiliser legs which are to be deployed to provide four firm stable points of contact with the ground independent of the shock absorbers and tyres of the vehicle.

The EWP operating instructions state that spread plates should be used under the legs if the ground is at all soft. This spreads the weight and reduces the likelihood of a tip over. The ground under the truck in this case was a grassed area of sandy soil. 

The Accused did not use spread plates on the soft sandy ground when setting up the EWP.  He rarely did, and had not owned any plates or timber pads since late 2008, so it was quite normal for him to operate this way.

Interference with safety interlock switch

Due to the significant risk of tipping over if the operator forgets to put one or more of the stabilisers down, the manufacturer has incorporated an interlock device that prevents the EWP boom being raised unless all four stabilisers are adequately lowered. 

The safety interlock switch on the boom of the Accused's EWP had been deliberately tampered with in order to override the mechanism.  Red adhesive tape had been put on the switch to hold it down and prevent it activating when the boom moved.  The Accused had previously instructed another of his employees to tape down the safety interlock switch.

The effect of this is that the boom can be elevated without the stabilisers deployed, increasing the risk of a tip over as the stabilisers will not be required to be fully deployed.

If the safety interlock switch had been free and working then the engine would have stopped if the operator had tried to elevate the boom.

The interference with the interlock switch was not directly related to the EWP tipping over in this instance.

Failure to supervise and ensure wearing a harness in EWP

The Accused was not wearing a safety harness and he did not ensure that his employee was wearing a harness when the two of them were working at height in the EWP.

There were anchor points in the bucket for harnesses to clip onto.

There was only one safety harness available at the workplace on 24 May 2010.

Failure to supervise employees wearing PPE

In addition to failing to ensure that his employee wore a safety harness in the EWP on 24 May 2010, the accused also failed to ensure that the employee wore other essential personal protective equipment (PPE), such as safety glasses and hearing protection.

The Accused also did not supervise other employees to ensure they wore their PPE when operating hazardous equipment such as chainsaws and the wood chipper. There is a risk of injury from flying debris and bits of sawdust whilst operating this equipment. 

Inadequate maintenance and inspection of EWP

The Accused had not carried out or ensured that an adequate pre-start check was carried out on the EWP. There was also an ongoing failure by the Accused to either conduct adequate pre-start checks himself or to ensure that has employees conducted them. 

The usual pre-start checks that were performed only included fuel, oil, water, grease and failed to include essential safety checks. On 24 May 2010, no pre-start check had been performed at all. That the simple checks that were being carried out were wholly inadequate is clearly indicated by the fact that the EWP was being used with an interlock switch held down with tape as well as one of the controls being completely missing and substituted with a hammer.

The Accused's knowledge

The Accused had a Certificate of Competency for operating an EWP. The EWP assessment instrument, used for the EWP certificate of competency training that was completed by the accused, included numerous points about the requirements to wear a safety harness, to assess the condition of the ground that the EWP is to be used on, and to pre-start checks; and that any tampering should be reported.

Additionally, information about the safe use of the EWP and warning about the above hazards was in the Operator's Manual (which the Accused possessed) as well as on decals displayed on the machine. For example, the need to wear a safety harness was stated on a large black and yellow decal that was affixed on the rear of the basket, immediately next to the entrance, which stated CAUTION: SAFETY BELTS WITH SHOULDER STRAPS OR SAFETY HARNESS ARE TO BE USED.

Repeated tampering with isolation switches after the incident on 24 May 2010

After the incident on 24 May 2010 the EWP owned by the Accused was taken away for repairs and another one was hired on a weekly basis. Despite the incident of 24 May 2010 and having been issued a Prohibition Notice by WorkSafe on that date for overriding the interlock on the EWP the Accused decided to tamper with the interlock on the hired machine by again holding it down with tape.

After using that hired EWP for six or seven weeks, the Accused purchased a second-hand EWP in mid-July 2010 to replace the one that had tipped over.

On 10 November 2010 a WorkSafe Inspector conducted a workplace inspection and identified on this EWP that again the interlock safety switch on the boom had been tampered with, this time being held down with a cable tie.

Outcome Summary

The Accused entered a guilty plea and was convicted.

Court Magistrates Court of Western Australia - Rockingham
Costs $1393.30

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