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. s.19(1) & 19A(2) Occupational Safety and Health Act 1984.

Charge 2: Being an employer allowed a person, an employee, to perform rigging work, basic (high risk work) without holding the appropriate class of High Risk Work Licence. r.6.2(3) Occupational Safety and Health Regulations.

Workplace and Employment

The Accused, FGS Contracting Pty Ltd, is an Australian Company with company registration number 605 075 161.  The Accused operated a building company based in Esperance which specialised in construction of residential and commercial sheds. The accused is a registered building contractor (company) registered number 101335.

The Accused’s Director, Ryan Wayne Franceschi, was the responsible person for the building registration purposes. Mr Franceschi held a Diploma in Building and Construction and was a registered building practitioner (individual) registration number 101345. He was also an employee of the accused on 18 May 2016.

On 18 May 2016 the Victim was employed by the Accused as a construction labourer. He was 17 years old and had only recently commenced employment with the Accused.

The Accused had 10 employees on 18 May 2016.

The Accused was contracted by an insurance company to carry out construction of a new steel structure shed on a farming property at location 1069 Rollond Road, Grass Patch (“the Workplace”) which is approximately 120km from the Esperance town site.

The shed was to be approximately 20m x 9m wide with the column height approximately 4m high with the roof ridge height approximately 4.8m high.

On 16 May 2016 a number of the Accused’s employees travelled to the Workplace to begin construction of the shed. They commenced standing up the columns for the shed structure and laid the steel trusses on the ground ready to be lifted into position at the top of the columns.  The steel trusses come as two half sections that are bolted together in the centre and then lifted and bolted onto the columns.

Whilst at the Workplace on 16 May 2016 the Accused Manitou Telehandler was delivered from a workshop in Esperance.  The Manitou Telehandler was operated by employees on 16 May 2016 at the workplace.

One of the employee’s informed Mr Franceschi that the hand brake on the Telehandler was not operating correctly. Mr Franceschi had previously been advised that the hand brake was not functioning correctly.

Offence 1:

Incident

On 18 May 2016 the Victim and Director Mr Franceschi travelled from Esperance to the Workplace.

The Director, Ryan Wayne Franceschi, was operating a Manitou Telehandler in order to lift the steel trusses.  Mr Franceschi operated the Telehandler by driving the tynes of the Telehandler in between the A frame of the truss and the chords of the truss. He then lifted the truss unsecured on the tynes to a height that enabled the truss to be bolted to the top of the column. The columns were approximately 4m high.

Mr Franceschi had the truss suspended in the air and put the handbrake on and left the cab of the Telehandler.  One person then held the ladder whilst the other went up the ladder to bolt the truss to the column. This occurred at each end of the truss. Neither employee was wearing a helmet.

The first truss was secured to the columns without incident.

Mr Franceschi then commenced on the second truss. He again used the Manitou Telehandler tynes to support the truss under the top chord of the truss.  The truss was positioned unsecured on the tynes approximately 300 – 400mm from the front end of the tine (approximately 1/3 of the way from the front of the tine).

Mr Franceschi maneuvered the Manitou Telehandler and placed the truss into a position between the next two columns.  The Victim then put the ladder into position against one of the columns and climbed up the ladder. He guided Mr Franceschi to move the Telehandler supporting the unsecured truss into a closer position to allow him to connect the bolts.

The Victim commenced connecting the truss to the column using a bolt.

Mr Franceschi put the handbrake on the Telehandler and left the cab of to assist the Victim securing the truss.  The Victim noticed the truss was moving in his hands and yelled at Mr Franceschi.  As Mr Franceschi left the vehicle and started to move towards the Victim, he noticed the Telehandler was moving slowly. Mr Franceschi returned to the cab and quickly applied the brake.

The truss fell off the tynes of the Telehandler and towards the Victim. The end of the truss hit the Victim in the head and caused a severe injury to his skull, jawbone, left clavicle and chest as it fell.  The force knocked the Victim off the ladder and onto the ground.

Serious Harm

The victim received extensive head and chest injuries which endangered his life. The head injury was so severe parts of his brain could be seen through the laceration. Without medical intervention he would have died.

The injuries to the victim included:

a.             Open skull fracture and pnemocephalus (intracranial gas);

b.             Left eye ptosis (lazy eye);

c.             Facial bone fractures;

d.             Orbital fracture;

e.             Full thickness laceration to face and upper chest with significant resulting scarring.

f.              Fracture of left clavicle (collarbone); and

g.             Injury to facial nerve resulting in facial palsy (paralysis); and

h.             Slight impairment of cognitive function;

The Victim was driven to Esperance hospital by the farm owner and then flown to Perth for surgery the same day.  The victim had to have maxillofacial surgery combined with neurosurgery and was sedated in ICU for 5 days. He was then transferred to the Acquired Brain Unit at the State Rehabilitation Service with ongoing rehabilitation.

The Victim has required cognitive rehabilitation, physiotherapy to return the function of his upper left limb, psychotherapy to deal with PTSD as well as speech therapy for expressive dysphasia. Some of his injuries are permanent.  The Victim has extensive scarring that goes from the top of the left side of his face, left eye and cheek down to his jaw and down the left side of his chest.

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 an unsecured truss on the tynes of a Telehandler which was raised at height with an employee in the vicinity which may result in serious injury or death.  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.

Mr Franceschi was the holder of a High Risk Work Licence (“HRWL”) for forklift (LF) and elevated work platforms (WP) and knew of the risks of unsecured loads.

It is reasonably foreseeable that lifting an unsecured steel truss in the air and on the tynes of a Telehandler with a person nearby is hazardous and may result in serious injury or death.  The load should have been properly secured before being lifted. The accused could have secured the load to the tynes of the Telehandler with slings, or used a Jib attachment, or alternatively used a truck Hiab with an appropriate lifting point.

It is reasonably foreseeable that employees’ exposure to falling objects from overhead may result in serious or catastrophic head injury if they do not wear safety helmets.

It is a requirement per r. 3.36(a) of the Occupational Safety and Health Regulations 1996 (WA) (“OSH Regulations”) that the accused ensure at all times a person is at risk of being struck to the head by a falling object that the person wears a compliant safety helmet.

The other Director of the company at the time, had a trailer that contained slings, shackles, helmets and other safety gear. Additional slings could be purchased at a cost of $16 each if required.

The Accused was required to produce a Safe Work Method Statement (“SWMS”) for all high risk construction work before work commences per r. 3.143(1) OSH Regulations.

The work at the Workplace involved operating powered mobile plant (that is, the Manitou Telehandler, serial number 159206) on a construction site which is high risk construction work. Completing a SWMS should have identified any hazards and how to mitigate them along with any qualifications or training required for persons doing the work to do it safely.

The accused did not complete any SWMS, hazard identification or risk assessment for the project.

Mr Franceschi knew there was a potential issue with the handbrake of the Manitou Telehandler but did not perform any pre-start check of the vehicle prior to operating it on 18 May 2016. Pre-start checks are routine for powered mobile plant.

It is well known in the industry that you should not leave the seat of powered mobile plant whilst the plant is in operation. This is included in the Operators Manual.   The Operators Manual had not been obtained by the Accused or read by Mr Franceschi before operating the plant.

Subsequent to the incident

After this incident the Accused hired a truck with a Hiab attachment and used this plant to erect the remainder of the trusses for the project. The cost of the Hiab was $250.00 for one day’s hire.

Subsequently, a qualified rigger was used until the Accused had sufficient trained staff to perform this role (see charge 2).

The Accused engaged the services of Employsure to assist in implementing a safety management system and to produce SWMS.

The Accused also adopted a policy of ensuring all staff wore helmets on construction sites involving overhead hazards and that the operators of mobile plant remain in the cab of the plant at all times whilst it is operating.

Offence 2:

On 18 May 2016 the accused allowed his employee to do high risk work, namely by performing rigging work, at the Workplace, without the employee holding a HRWL of the class required, namely rigging work, basic (RB).

The Victim was directed by the Accused Director, Mr Franceschi to climb a ladder and bolt steel structural members of a shed together whilst Mr Franceschi operated load shifting equipment, namely a Manitou Telehandler in order to lift the structural members into place. This is basic rigging work as defined by Schedule 6.3, Division 3, clauses 4 and 5 OSH Regulations.

The Victim also did not hold a construction induction training certificate which could have been obtained online at a cost of $90.00. This is mandatory for all construction workers as per r. 3.136(2) OSH Regulations.

Neither Mr Franceschi nor the Victim held a HRWL to perform rigging work.

After the incident involving the Victim, Mr Franceschi, and several other employees obtained a HRWL to enable them to perform rigging work. This was at a cost of $1,100.00 per person however the Building and Construction Industry Training Fund would have reduced this cost by up to 70%.

The accused entered a guilty plea at first mention on 13 March 2018 and was convicted.  On 18 May 2018 the Magistrate fined the accused$200,000 for Charge 1 and a fine of $25,000 for charge 2.   No order for costs.