Prosecution Details

Charge 1: Being an employer did not as far as is practicable provide and maintain a working environment in which the employees of the employer are not exposed to hazards and by that contravention caused the serious harm to an employee.

Charge 2: Being an employer allowed a person to operate a forklift (high risk work) without holding the appropriate class of High Risk Work Licence.

The Accused, Mineral Trans (WA) Pty Ltd, is an Australian Company with company registration number 144 696 935, and in partnership with another entity, Daytona Investments Pty Ltd as trustee for the Cranes Haulage Trust, operated a transport business trading as “Cranes Haulage” with a depot at Lot 3, Harbour Road in Esperance (“the Workplace”) with another depot in Kewdale Perth.

The Victim was a full time employee of Cranes Haulage on 5 August 2014 and was employed as a truck driver.  Cranes Haulages’ General Manager was also a full time employee of Cranes Haulage on 5 August 2014.

Offence 1:

Incident: On 5 August 2014 the Victim was driving a truck that had two trailers attached that were carting empty half-height sea containers that were locked together two high using twist locks and locked to the trailer. He drove into the yard on Harbour Road in Esperance in order for the containers to be unloaded.

The General Manager was operating a forklift in order to unload the containers from the trailers which were attached to the truck driven by the Victim.

Once the Victim parked his truck he released the locks that secured the containers to the trailer so they could be lifted off the truck by the general manager.

The general manager operated the forklift by inserting tines into the top container to lift the two joined half height containers off the bed of the trailer and then placed them on the ground.

The Victim then went around to each of the four corners where the twist locks were located and released the twist locks that connected the top container to the bottom container. After he had released the locks and stepped a metre away from the containers, the general manager began lifting the top container up from the bottom container. 

At that time the Victim was standing on the right hand side of the container and could be seen by the general manager.

The Victim then moved to remove the twistlocks from the bottom container which required him to put his left hand on a twistlock to remove it.

As the general manager was lifting the top container the left hand side of the containers was stuck together.  He looked to the left side to see what was causing the containers to be stuck together, and then they separated.  He then looked back to where the Victim had been standing and could not see him, but heard him yell out.

The general manager then got out of the forklift and went to the Victim, and saw that he was holding his left hand.

The Victim’s left hand was crushed between the two containers when the containers separated.

Serious Harm

The Victim received crush injuries to his left hand. He was driven to Esperance hospital immediately after the incident and then flown to Perth for surgery the following day.  He had to have pins inserted in his hand and follow up surgery.

The victim has had a number of follow up hospital visits and undergone physiotherapy. He has lost strength in that hand and has been medically assessed as unfit for employment as a truck driver since this incident.

The injuries are described as follows:

a.             Severe crush injury to the left hand;              

b.             Soft tissue injury requiring free flap reconstruction and split skin graft; 

c.             K-wire fixation of open fractures to the 2nd, 3rd, 4th and 5th metacarpals;

d.             Development of features of complex regional pain syndrome;

e.             Skin scarring;

The Hazard

The Accused did not as far as is practicable provide and maintain a working environment in which its employees are not exposed to hazards.

The hazard (“hazard”) in the working environment was a body part being underneath a suspended load of a forklift and being struck or crushed by that load which may cause serious injury.

It is an unsafe system of work to allow an employee to be in close proximity to the suspended load of a forklift.  The Accused’s failure to provide and maintain a safe working environment caused serious harm to the Victim.

Foreseeability

A reasonable person in the position of the Accused should have foreseen the Hazard.

The Accused had a safety induction package that stated that a Job Safety Analysis (JSA) was required to be completed prior to any work taking place on a job that has no procedure, is uncommon or complex in nature.

There was a verbal procedure in place for the work undertaken to split containers and removing twist locks.  However, no written JSA or written Safe Work Procedure was in place. 

The Accused also had a safety induction questionnaire as part of a package available for employees. There is no record of either the general manager or the Victim completing this.

There was no written traffic management plan to ensure that pedestrians were separated from the immediate area where forklifts operated.

The Accused should have ensured that when containers are separated any pedestrian is in a designated safe zone with eye contact made by the forklift operator before the top container is removed. This container could then be placed in an area away from the pedestrian zone or the load is lowered to the floor with the forklift put into neutral gear with the handbrake applied. Once the top container is no longer a hazard to any pedestrians the pedestrian can then approach the bottom container to remove the twist lock without any risk of injury from either a suspended load or the forklift.

Subsequent to the incident, in recognition of the Hazard, Cranes Haulage ceased the task of separating sea containers and has not resumed that task.

Offence 2:

On 5 August 2014 the accused allowed his employee to do high risk work, namely operate a forklift, at the workplace, without the employee holding a High Risk Work Licence of the class required (class LF – forklift operation).

Subsequent to the incident involving the victim, on 15 January 2015, the accused employee obtained a High Risk Work Licence class LF to operate a forklift.

The Prosecutor does not rely on Offence 2 as aggravating circumstances for the purpose of Offence 1.

On 15 December 17 the Accused entered a guilty plea to both charges and was convicted.  The magistrates handed down his decision on 16 March 2018 after sentencing was heard on 13 March 2018.  The Magistrate fined the Accused $55,000 for charge 1 and $3000 for charge 2.  Costs of $5542.97 were also ordered.