Prosecution Details

The Accused was the director of a body corporate guilty of an offence under the Occupational Safety and Health Act 1984, where that offence:

(i) Occurred with the consent of the Accused; or

(ii) Was attributable to neglect on the part of the Accused.

Contrary to section 55(1) of the Occupational Safety and Health Act 1984.

Background

Total Landscape Redevelopment Services Pty Ltd (Total Landscape), is a corporation that carries on a business of landscaping and related services.

The Accused, Mr Cantelo, is the sole director, secretary and shareholder of Total Landscape. Mr Cantelo is entirely responsible for all day-to-day decisions of Total Landscape.

Total Landscape had been engaged by the City of Stirling (City) as one of a number of ongoing landscaping contractors as of 1 September 2011, pursuant to the City's contract number 2.7.3.48.2011/12, described as being ‘for the provision of landscape construction, development, establishment and associated services within the [City]' (Contract). Prior to the incident, the City was Total Landscape's largest client, constituting over half of its business.

By purchase order PPR29864, dated 20 October 2011, the City had commissioned Total Landscape to perform landscaping works (Landscaping Works) at Morris Place, Innaloo, outside the Innaloo Community Centre (Centre).

The Centre is located in the southeast corner of a number of commercial buildings that collectively form the Morris Place shopping precinct, located in a primarily residential area, readily accessible from two directions.

The Landscaping Works were to be part of the broader upgrade of the precinct, and included removal of the existing playground at the Workplace, relevelling of the ground, and returfing.

Also in the vicinity of the Workplace was a small shed (Shed). The City had granted an amateur theatre group a licence to use the Shed and certain parts of the Centre. The theatre group used the Shed to store property related to their activities.

By email dated 12 October 2011, the City informed stakeholders, including the theatre group, that certain works were planned to commence at the Workplace on 17 October 2011, with other works anticipated for March 2012.  In fact, due to delays with plumbing and concreting works carried out by other contractors at the Workplace, Total Landscape commenced the Landscaping Works on 24 November 2011.

Prior to the Landscaping Works commencing, the City had arranged for the removal of the perimeter fence running along the north and west boundaries of the Workplace.

Events of 25 November 2011

On Friday 25 November 2011, Total Landscape commenced carrying out that day's tasks for the Landscaping Works through the following persons, in the following capacities.

1.             Mr Cantelo - Supervisor

2.             Long-term contract landscape labourer

3.             Long-term contract landscape labourer

4.             Employee landscape labourer

5.             Employee landscape labourer

Total Landscape owned a Caterpillar model 247B2 Multi Terrain Loader (or ‘skid steer loader'), registration 1DIK199 (Bobcat). The tare weight of the Bobcat was 3,174 kg.

As part of the Landscaping Works on 25 November 2011, Total Landscape used the Bobcat to lay and mix sand around the area generally north of the Shed and ‘back blade' the sand to press it down prior to the laying of turf. The Bobcat was solely operated by Mr Cantelo on 25 November 2011.

The Bobcat had a blind spot out the rear of the cab.  The Bobcat was fitted with a reversing beeper, which was operational and loud. Mr Cantelo did not require earmuffs, as the Bobcat was relatively quiet to operate.

On 25 November 2011 the City itself was also carrying out reticulation work at the Workplace in parallel with the Landscaping Works, through two of its employee irrigation maintainers (irrigation workers).  The reticulation pipes had to be laid in advance of the laying of the turf by Total Landscape.

The two irrigation workers were primarily working in the northern part of the Workplace, along the southern wall of the Centre, to the east of the area in which the Bobcat was operating, although at times they were also working between the Shed and the area in which the Bobcat was operating.

At approximately 9 a.m. on 25 November 2011, the stage director of the theatre group arrived at the Workplace and parked his vehicle near the Shed.

The stage director was able to access the Workplace by using keys held by the theatre group to unlock the bottom gate.

The stage director, on behalf of the theatre group, had arranged for a skip bin to be delivered to the site on that day in preparation for a busy bee to be held that weekend. The skip bin was delivered during the morning through the bottom gate and placed by the Shed.

Neither Total Landscape nor the City had prior notice that the stage director would be at the Workplace on 25 November 2011.

Mr Cantelo told the stage director that he did not want him at the Workplace. However, the stage director advised Mr Cantelo that he would only be working in the area between the skip bin and the Shed.

Mr Cantelo was concerned but was not sure whether it was his responsibility or prerogative to require the stage director to leave. Mr Cantelo warned the stage director to stay away from the Bobcat, and he expressly agreed to do so.

Over the course of the morning, the stage director was removing material from the Shed and transporting it into the skip bin in apparent preparation for the busy bee. The Shed and skip bin were outside, but adjacent to, the area in which the Bobcat was operating, and visible to Mr Cantelo operating the Bobcat.

On a number of occasions, the stage director also moved from the Shed to the Centre and back again, such as to get a cup of tea. On these occasions, he walked across the eastern section of the Workplace, away from the area in which the Bobcat was operating, past the irrigation workers.  Mr Cantelo was not aware of this.

During the morning, one of the long term contract landscape labourers (of Total Landscape) made several trips to and from the Workplace in his truck, bringing fill sand for the Landscaping Works. On one occasion, the stage director came in proximity to the landscape labourer's truck and was told to keep out of the way. Mr Cantelo was not aware of this.

One of the irrigation workers (of the City) also warned the stage director on at least two occasions to be careful of the reticulation trenches and the operation of the Bobcat. However, this was not prompted by any particular concern as to the stage director's conduct. The irrigation worker was simply being vigilant for the stage director's welfare.

The stage director had observed the Bobcat being operated at the Workplace during the course of the morning, on at least one occasion while having a cup of tea on the stairs on the southern wall of the Centre.

At some time between 11:30 a.m. and noon, Mr Cantelo instructed the four landscape labourers to take lunch. Mr Cantelo instructed a couple of the landscape labourers to get lunch for themselves and Mr Cantelo. The four men left the Workplace. Shortly thereafter, the two irrigation workers noticed that the Total Landscape workers had left for lunch and so they also then left the Workplace for lunch. This left Mr Cantelo and the stage director as the only persons at the Workplace for a period of between five and ten minutes. 

Mr Cantelo continued to operate the Bobcat, carrying out very short (two to three metre), methodical back and forth manoeuvres.  After checking his rear vision mirror and considering the area to be clear, he reversed the Bobcat generally westwards, up the incline in the area between the Centre, the Shed, and the access road.

Mr Cantelo sensed an impact and moved the Bobcat forward. He jumped out and saw that the stage director had been struck by the Bobcat. The stage director was lying on the ground in roughly the centre of the Bobcat's work area.

The stage director suffered multiple injuries, including to his head, chest, abdomen, pelvis and limbs. Although he was conscious immediately after the accident, he lost consciousness before paramedics arrived. Despite attempts to revive him, he died as a result of his injuries, without regaining consciousness.

Total Landscape's systems

Total Landscape had done landscaping works in public open space in the past. In those cases, Total Landscape dealt with potential encroachment by members of the public by cautioning any such persons, and by parking vehicles so as to create a barrier to the work area. Further, because those jobs tended to be within large recreational areas, there was good visibility in all directions.

The Bobcat's manual included the following instructions.

1. (Safety Section: Safety Messages, p 9) Be alert! Know work conditions. Note and avoid all hazards and obstructions. Keep bystanders away when operating. ... Failure to follow the instructions or heed the warnings could result [in] injury or death.

2. (Safety Section: Visibility Information, p 27) Before you start the machine, perform a walk-around inspection in order to ensure that there are no hazards around the machine. While the machine is in operation, constantly survey the area around the machine in order to identify potential hazards as hazards become visible around the machine. ... It may not be possible to provide direct visibility on large machines to all areas around the machine. Appropriate job site organisation is required in order to minimise hazards that are cause by restricted visibility. Job site organisation is a collection of rules and procedures that coordinates machines and people that work together in the same area. Examples of job site organisation include the following:

• Safety instructions
• Controlled patterns of machine movement and vehicle movement
• Workers that direct traffic to move when it is safe
• Restricted areas
• Operator training
• Warning symbols or warning signs on machines or on vehicles
• A system of communication
• Communication between workers and operators prior to approaching the machine

3. (Operation Section: Operation, p 77) To prevent injury, make sure that no people are working on the machine or near the machine.

Total Landscape had paid for its four landscape labourers to go through training in traffic control and pedestrian management.

Prior to commencing work on 25 November 2011, as usual, Total Landscape held a toolbox meeting, attended by Mr Cantelo and three of the landscape labourers. One of the long term contract landscape labourers had already left the Workplace to collect fill sand. Items discussed included pedestrian management, such as ‘symbolic workmen signs and cones', and the potential need for a ‘flag man' for the receipt of materials, sand and turf to the Workplace.

Prior to commencing work on 25 November 2011, Total Landscape placed signs and traffic cones as warnings at various locations around the Workplace.

In respect of Total Landscape's own workers at the Workplace, Mr Cantelo expected them to maintain a line of sight with him and the Bobcat where practicable, and to not move behind the Bobcat when it was operating. Each of Total Landscape's workers understood that the Bobcat had a blind spot, and from experience working around powered mobile plant and general training knew to take these measures for self-protection. 

Subsequent to 25 November 2011, Total Landscape has taken the following measures.

1. Total Landscape has developed a standard job safety analysis (JSA). For a playground construction job in Nollamara in February 2012, Total Landscape's JSA identified the hazard of ‘public encroachment' in relation to a number of tasks. In respect of each, control measures identified included ‘maintain eye contact', ‘spotter' and ‘temporary fence'. The person responsible was identified as Mr Cantelo.
2. Mr Cantelo has instructed all persons working for Total Landscape that a spotter is required whenever the Bobcat is in use and there is a risk of public encroachment.
3. Total Landscape does not use the bobcat when unfamiliar persons are on site.

Relationship between the City and Total Landscape

The Contract included the following terms.

1. (Cl 7) [Total Landscape] is responsible to achieve the objective of the Contract to the extent that a proficient and qualified contractor exercising due diligence could be expected to achieve in accordance with the Contract Documents. [Total Landscape] is to be solely responsible for:
   1. provision of security at a site;
   2. provision of suitable warning signs and barricades;
   3. injury to themselves, their employees or the members of the public;
   4. loss or damage to any person or property.
2. (Cl 7.15) [Total Landscape] acknowledges the Occupational Safety and Health Act (WA) and sets out specific duties relating to the general duty of ensuring Employees and/or the community are not exposed to hazards. [Total Landscape] is to comply with the [City's] safety requirements or as directed by the Contract Superintendent.
3. (Cl 7.15.6) [Total Landscape] is to perform work with the least possible inconvenience to the public. The public is to be protected from injury by [Total Landscape] in an adequate and satisfactory manner (e.g. warning signs and/or barriers).

A Technical Officer from the City would be responsible for engaging and instructing Total Landscape in respect of any particular job commissioned.

Through the responsible Technical Officer, the City could have required Total Landscape to stop work if a safety issue had been identified, although this had never arisen in the past.

For some jobs in the past, the responsible Technical Officer had specifically required Total Landscape to implement particular traffic or pedestrian management or other exclusion systems, including through the provision to Total Landscape of bunting.

Mr Cantelo and the Parks and Reserves Technical Officer responsible for overseeing the Landscaping Works on behalf of the City, met at the Workplace prior to commencement of the Landscaping Works. They discussed the content of the Landscaping Works, access to the site and parking arrangements by Total Landscape.

The Parks and Reserves Technical Officer did not raise any site-specific requirements for traffic or pedestrian management, such as fencing or the use of ‘spotters'.

It was on this basis that Total Landscape did not purport to take any measures further than those referred to above on 25 November 2011, and discussion that Mr Cantelo had with the stage director in which the stage director undertook to remain in the area between the skip bin and Shed, which Mr Cantelo considered the minimum requirement, but appropriate to the circumstances.

Total Landscape did not provide the City with a JSA or other safety plan for the Landscaping Works, or otherwise indicate to the City how it would address any potential hazards due to pedestrian encroachment of the Workplace. Prior to 25 November 2011, Total Landscape had never been requested to provide a JSA for any work for the City, nor was there any obligation for Total Landscape to do so.

Neither Mr Cantelo nor any of the other workers at the Workplace on 25 November 2011 (including the two irrigation workers (City) contacted the Parks and Reserves Technical Officer or otherwise informed the City of the presence of the stage director on the Workplace, or any concerns at his presence.

Publications available as at 25 November 2011

As at 25 November 2011, the Commission for Occupational Safety and Health had published a Guidance note: Safe movement of vehicles at workplaces, which was available in print and online, and relevantly noted that:

1. workplace hazards involving vehicles and mobile plant may occur during (inter alia) pedestrian movement; and vehicles or plant reversing (page 4);
2. reversing, loading, unloading and pedestrian movement are the activities most frequently linked with workplace vehicle accidents (page 5);
3. most reversing accidents can be avoided by:
   1. removing the need for reversing, e.g. with drive-through loading and unloading systems;
   2. minimising the need for reversing, e.g. by reorganising loading and unloading procedures;
   3. providing clearly marked reversing areas visible to drivers and pedestrians;
   4. excluding non-essential personnel from the area;
   5. ensuring rear view mirrors, fixed safety mirrors and windscreens are kept clean and in good repair;
   6. ensuring signallers wear high-visibility clothing and their signals are clearly seen;
   7. keeping reversing alarms in good working order and loud enough to be heard above other noises at the workplace;
   8. using radios and other communication systems;
   9. ensuring drivers have another person to direct them before reversing, if they cannot see clearly behind;
   10. ensuring visiting drivers are familiar with workplace routes and reversing areas;
   11. providing larger reversing areas;
   12. placing fixed mirrors at blind corners;
   13. fitting refractive lenses on rear windows to help drivers see ‘blind spots'; and
   14. using flashing reversing lights on vehicles if workplace noise is too loud for reversing alarms to be heard (page 11);
4. machines have blind spots where operators may not see people nearby (page 12); and
5. regulation 3.22 of the Occupational Safety and Health Regulations 1996 (WA) requires employers, main contractors and those in control of workplaces to ensure the movement and speed of vehicles and plant at the workplace are managed in a way that minimises the risk of injury to pedestrians (page 15).

As at 25 November 2011, the Commission for Occupational Safety and Health had also published a Guidance note: Powered mobile plant - Making it safe, which was available in print and online, and relevantly noted the following (page 12).

Around earthmoving ... machinery, being run over by [powered mobile plant] is the greatest risk to pedestrians. In respect of large earthmoving machinery it needs to be recognised that the operator's view of pedestrians may be restricted or even obscured by the [plant] itself. Safe systems of work need to be developed and implemented that provide, as a minimum, a method of communications between pedestrians and [plant] operators that ensure each is aware of the other before the lack of distance between them creates a risk.

Practicable measures that could have been taken as at 25 November 2011

As at 25 November 2011, it was reasonably practicable for Total Landscape to have not operated the Bobcat at the Workplace prior to:

1. ensuring the presence of a designated ‘spotter' (whether provided by Total Landscape or otherwise) to prevent any pedestrians from approaching the Bobcat during its operation; or
2. ensuring that one or more workers (other than any person operating the Bobcat) was present and able to observe pedestrian movements at the Workplace and prevent any pedestrians from approaching the Bobcat during its operation.

Taking either of these measures could have reduced the risk of the stage director being struck by the Bobcat, and consequently killed, on 25 November 2011.

Mr Cantelo was the sole director of Total Landscape and was personally directing the conduct of Total Landscape and its workers at the Workplace on 25 November 2011. As such, the failure of Total Landscape to take either of these measures was attributable to neglect on the part of, or occurred with the consent of, Mr Cantelo.

The Accused entered a guilty plea and was convicted.  The Magistrate fined the Accused a final fine of $20,000 after the head sentence of $30,000 was reduced by 10% discount ($3,000) for the plea, and a further $7,000 for other mitigating factors.

Sentenced on 31 October 2014