Prosecution Details

On 1 May 2009, the Accused, being an employer, failed to ensure, so far as was practicable, that the health and safety of a person not being an employee of the Accused, was not adversely affected wholly or in part as a result of any hazard that arises from or is increased by the work that was being undertaken by an employee of the Accused, and by that contravention caused serious harm to another person, contrary to section 21(2)(b)(i) and 21A(2) of the Occupational Safety and Health Act 1984.

The Accused carries on a business in which it employs and contracts truck drivers to Kings Transport & Logistics (WA) Pty Ltd (Kings).

The Staff that manage Kings were employed by Kings Administration (WA) Pty Ltd (Kings Administration).

At the time of the incident, the Accused provided truck drivers to Kings.  Kings operated 42 vehicles in Perth. The nature of those vehicles varied from utes to flatbed trucks and enclosed trucks.

Kings contracted with Pacific Brands Holdings Pty Ltd (trading as Sleepmaker) to transport bedding products (the Sleepmaker Contract).

Kings is an operational entity that contracts with the Accused.  Kings and Kings Administration share the same directors as the Accused.

The transportation of the bedding products under the Sleepmaker Contract is performed by Kings utilising driver's supplied by the Accused to King's.

Two of the vehicles operated by Kings in Perth are trucks that were almost exclusively dedicated to fulfilling the Sleepmaker Contract.

An employee of the Accused was provided to Kings through their contract with the Accused as a truck driver driving one of the trucks that fulfilled the Sleepmaker Contract.

On 1 May 2009 the truck driver was carrying out his routine activities of transporting mattresses.  He drove a truck registration number 1CIW-517.  This truck was registered to Kings.

On 1 May 2009 Eswood Australia Pty Ltd (Eswood) contacted the Kings call centre and requested the transport of two industrial ovens.

The call centre operated by Kings was manned by Kings Administration who tasked the drivers of the Accused.

It was the business practice of Kings to enquire with a customer into the details of the item to be collected. Those details included the weight of the item, the dimensions of the item and the delivery address.

During the course of his work on 1 May 2009, the truck driver was directed by a worker in the call centre to go to Eswood and transport two industrial ovens.

The contract between Kings and Eswood is for Kings to provide transport only.   However, in respect of the tail lift, the Accused expected that its employed drivers would operate the tail lift.

Eswood is located at Unit 1, 10 Wittenburg Drive, Canningvale in the State of Western Australia.

The industrial ovens were stored in a small warehouse which had a roller door access on to a carpark at the front of the Eswood premises.

The truck driver arrived at Eswood at approximately 11:00am and parked the Truck in the driveway of Eswood with the rear of the Truck facing the roller door.  The driveway sloped downwards from the roller door towards the road.  He exited the Truck and lowered the Truck's tail lift to the ground.

The victim, not being a person employed by the accused, is an employee of Eswood.

The victim used a walkie stacker, owned by Eswood, to lift the first industrial oven off of the warehouse floor and move it onto the tail lift.  She had not been trained, nor assessed as being competent, in how to operate the walkie stacker by Eswood.

Prior to moving the walkie stacker onto the tail lift, the victim said to the truck driver words to the effect "do you want the industrial oven on the tail lift?".

He replied to the victim words to the effect "put the whole lot on the tail lift".

The "whole lot" was a reference to both the walkie stacker and the industrial oven.

The victim had never put a walkie stacker on a tail lift before.

The victim said to the truck driver words to the effect "are you sure?".

The truck driver said to the victim words to the effect "it will be fine".

The truck driver had not previously placed or caused a walkie stacker to be placed on any truck tail lift.

The victim placed the walkie stacker on the tail lift of the Truck.

The industrial oven remained loaded on the walkie stacker.

The victim stood on the tail lift of the Truck behind the walkie stacker.

The truck driver stood on the tail lift of the Truck.

The truck driver proceeded to raise the tail lift upwards with the foot controls, when he heard a popping sound.  He looked down and noticed that the forks of the walkie stacker were too far forward and had contacted a light protruding on the rear of the truck.

The truck driver requested the victim to reverse the walkie stacker a short distance.

Once the tail lift was stationary the victim intended to operate the walkie stacker to move forward and into the truck.

The walkie stacker travelled backwards and fell off the rear of the tail lift.  The victim asserts that when she pulled the control arm, the walkie stacker rolled off the rear of the tail lift. As the walkie stacker fell to the ground it collected the victim who was pinned between the walkie stacker and the ground. 

As a result of the incident, the victim suffered a fractured skull, broken ribs and serious spinal injuries.

It was practicable for the Accused to have ensured the truck driver was trained in the proper use of the tail lift, including the use of the roll stop devices on the tail lift.

The Accused failed to take the practicable measure referred to above.

The truck driver had not received any training in the use of the roll stop devices.  He had never used roll stop devices before.

The truck driver was not provided with the Operator's Manual or Operating Card for the tail lift.

The truck driver completed and signed off induction training prior to commencing work for the Accused.

As part of induction training the truck driver was trained in seeking instructions from the Fleet Controller at Kings if there was any doubt about the transportation to be performed.

The truck driver had no involvement in the operation of the walkie stacker.

the Accused entered a guilty plea and was convicted on 7 December 2012.  Penalty imposed on 14 February 2013.