Prosecution Details

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, and by that failure caused serious harm to an employee.

Marley's Transport Pty Ltd (the Accused) is a transport company with over 50 trucks and trailers which transport products such as grain. The Accused occupied premises and operated its business from property known as 6 Noble Street Kewdale. (the Workplace).
The Accused has five directors with one of the directors being the workshop manager and another being the operations manager.
The Workplace contained a yard and workshop and the Accused conducted the servicing and repair of its trucks and trailers in-house.
Three of the trailers used by the Accused had foam seals around the edges of the tailgate to prevent the product from escaping around the edges of the tailgate when the vehicle is moving.
The opening and closing of the tailgate of those trailers over time causes the seals to wear down and were required to be removed and replaced. The replacement of the side and bottom seals could occur one or two times a year. The replacement of the top seals was seldom required.
To replace the bottom and side seals, a pipe or piece of wood is placed between the tailgate door and the trailer to hold it open and give sufficient clearance to remove and replace the seals.
To replace the top seal, the tailgate was released and the tailgate door was opened to give access to the seals. The tailgate was then raised using a forklift, with the tailgate resting on the forklift tines. The employees would then manually replace the top seal by climbing into the back of the trailer, which required them to walk underneath the raised tailgate which was resting unsecured on the forklift tines.
On 23 January 2013 one of the employees (employee 1) was instructed by the operations manager to replace the tailgate seals on a trailer.
Employee 1 had completed the replacement of the sides and bottom seals of the tailgate when the operations manager instructed another employee (employee 2) to lift the tailgate up with the forklift to gain access to the top seal.
The tailgate was already slightly raised with a section of iron pipe wedged between the edge of the tailgate and the trailer from previous repairs being undertaken on the trailer earlier in the day.
Employee 2 (who did not hold a High Risk Work Licence to drive a forklift) positioned the forklift at the rear of the trailer. Employee 1 was standing on the left hand side of the forklift in the vicinity of the tailgate which was being raised.
Employee 2 then further raised the tailgate by resting the edge of the tailgate on the forklift tines and another employee removed the section of pipe wedged between the edge of the tailgate and the trailer.
Employee 1 was guiding Employee 2 on the movement and lift of the forklift. Employee 2 began to reverse the forklift slowly whilst the tailgate rested on the tines. The tailgate was resting approximately 250mm from the end of the forklift tines.
Employee 1 then positioned himself in between the tailgate and the rear of the trailer and continued to guide the movement of the forklift.
Employee 2 continued to reverse the forklift and the tailgate slipped off the tips of the forklift tines and struck employee 1 in the head. Employee 1 fell to the ground.
Employee 1 was taken by ambulance to hospital where he was treated for a fracture at the base of his skull, right facial nerve palsy and lacerations to his head. He suffered serious harm, as even following treatment these injuries have left him with permanent impairment.
A person standing under a load held and suspended by a forklift is a commonly known hazard within industry, including the transport industry.
The risks of being hit by a swinging unsupported tailgate are extremely high when undertaking this work using a forklift because loads can fall without warning due to operator error or unintentionally moving the raised and suspended load. A risk of being hit by a swinging unsupported tailgate also exists if there was a mechanical fault in the forklift being used. However, this is a lower risk than that or operator error.
Employees that were exposed to the hazard were at risk of suffering serious or fatal injuries, such as cranial fractures.
It was practicable for the Accused to have used a different method to open and secure the tailgate where the tailgate was not suspended in an unsecure manner, such as:
- by tilting the trailer so the tailgate is hanging vertically straight; and/or
- through the use of a fabricated adjustable prop which is welded to the body of the trailer and the tailgate.
Further, it was practicable for the Accused to have ensured that any person:
- required to undertake repair or maintenance work on a trailer had been trained in these methods, demonstrated competence in these methods; and/or
- was supervised by a person trained in these methods; and/or
- was not standing under the load whilst it was lifted and suspended.
Taking any or all of these measures would have mitigated the risk of the suspended tailgate slipping and injuring employee 1.

The Accused entered a guilty plea on 22 January 2016 and was convicted. On 4 March 2016 the Magistrate fined the Accused $75,000.00 and ordered costs of $1,980.00.