|Offender||Ryan Wayne Franceschi|
|Charge||Charge Number||Offence Date||Date Convicted||Regulation||Section||Penalty Provision||Penalty Imposed||Date Sentenced|
|1||ES121/2018||18 May 2016||13th March 2018||19(1) 19A(2) 55(1) 55(1)(b)||3A(3)(a)(i)||$100,000.00||18th May 2018|
|2||ES122/2018||18 May 2016||13th March 2018||6.2(1)||1.15(2)(a)||$2,500.00||18th May 2018|
|Description of Breach(es)||
Charge 1: Being a director of FGS Contracting Pty Ltd (a body corporate) when FGS Contracting Pty Ltd was guilty of an offence under the Occupational Safety and Health Act 1984 and that offence occurred with the consent or connivance of, and/or was attributable to the neglect of the accused. 55(1) 19(1) & 19A(2) Occupational Safety and Health Act 1984.
Charge 2: Performed high risk work of a particular class, namely rigging work, basic without holding the appropriate class of High Risk Work Licence, namely RB (rigging work – basic). r.6.2(1) Occupational Safety and Health Regulations.
Workplace and Employment
The Accused is the Director of an Australian company, FGS Contracting Pty Ltd (FGS), with company registration number 605 075 161. The Accused was the responsible person for the building registration purposes for the company.
The Accused holds a Diploma in Building and Construction and was a registered building practitioner (individual) registration number 101345. He was also an employee of FGS on 18 May 2016.
FGS operated a building company based in Esperance which specialised in construction of residential and commercial sheds.
On 18 May 2016 the Victim was employed by FGS as a construction labourer. He was 17 years old and had only recently commenced employment with FGS.
FGS had 10 employees on 18 May 2016.
FGS 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 and the roof ridge height approximately 4.8m high.
On 16 May 2016 a number of FGS’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 a Manitou Telehandler (serial number 159206) owned by FGS was delivered from a workshop in Esperance. The Manitou Telehandler was operated by other employees on 16 May 2016 at the workplace.
On 16 May 2016 one of the employee’s informed the Accused that the hand brake on the Telehandler was not operating correctly after having operated it at the Workplace.
On a previous occasion before the Telehandler was taken to the workshop the Accused had been advised that the hand brake was not functioning correctly.
On 18 May 2016 the Accused and the Victim travelled from Esperance to the Workplace.
The Accused was operating the Manitou Telehandler (serial number 159206) in order to lift the steel trusses that had been laid out by the other employees on 16 May 2016. The Accused operated the Telehandler by driving the tynes of the Telehandler in between the A frame of the truss and the chords of the truss.
The Accused 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.
The Accused had the truss suspended in the air on the tynes and put the handbrake on. He then left the cab of the Telehandler in order to help the Victim secure the truss to the column.
One person 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 the Accused nor the Victim was wearing a helmet.The first truss was secured to the columns without incident. The Accused 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 tyne (approximately 1/3 of the way from the front of the tyne).
The Accused maneuvered the Manitou Telehandler and placed the truss into a position between the next two columns, ready to be bolted in.
The Victim then put the ladder into position against one of the columns and climbed up the ladder. He guided the Accused 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.
The Accused put the handbrake on the Telehandler and left the cab to assist the Victim bolting the truss to the column.
The Victim noticed the truss was moving in his hands and yelled at the Accused. As the Accused left the vehicle and started to move towards the Victim, he noticed the Telehandler was moving slowly. The Accused returned to the Telehandler cab and quickly applied the brake.
The steel 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 with the truss resting on his legs.
The Victim received extensive head and chest injuries which endangered his life. His 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);
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 required 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.
Consent, Connivance and/or neglect
The Accused was a working Director of FGS and operating the Manitou Telehandler at the Workplace. He was the holder of a High Risk Work Licence (“HRWL”) for forklift (class LF) and elevated work platforms (class 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.
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.
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 neglected to do any or all of the following:
The accused neglected to develop and enforce a Safe Work Method Statement (SWMS) for the movement of powered mobile plant, being the Telehandler, at the Workplace that included the following:
The accused neglected to purchase and have available a Jib attachment which would be suitable to lift the truss using the Telehandler in a safe manner;
The accused neglected to have available and use slings to attach the truss to the tynes of the Telehandler to secure the load;
The accused neglected to ensure that any person at risk of being struck to the head by falling objects at the workplace is required to wear a safety helmet whilst that risk is present;
The accused neglected to ensure every person performing work at the workplace under his direction possessed a current Construction Induction Training Certificate (commonly called a white card);
The accused neglected to ensure appropriate training was afforded to employees under his direction so they were aware of all of the hazards at the workplace and the means to reduce the risks from those hazards;
The accused consented to any or all of the following:
The accused consented to the Victim being allowed at the workplace which was a construction site without holding a current Construction Induction Training Certificate (commonly called a white card);
The accused consented to the Victim not wearing a safety helmet whilst at risk of head injury by falling objects at the workplace;
The accused consented to operating the Manitou Telehandler at the workplace whilst not having read the operators manual;
The accused consented to operating the Manitou Telehandler without having performed a pre-start check of the Telehandler prior to use;
The accused consented to operating the Manitou Telehandler whilst there was a suspected issue with the handbrake and this issue had not been rectified by a qualified mechanic;
The accused consented to raising a load on the tynes of the Telehandler whilst the load was not adequately secured by either slings or a Jib attachment;
The accused consented to the Victim approaching the truss which was sitting unsecured on the tynes of the Manitou Telehandler;
The accused consented to leaving the cab of the Telehandler whilst the Telehandler was in operation and a load was suspended on its tynes;
The accused consented to the Victim perfoming rigging work whilst not holding the appropriate training or qualifications to perform this role;
Subsequent to the incident
The Accused, to his credit, contacted WorkSafe the day after this incident and requested an Inspector attend on site to conduct an investigation into the matter.
After WorkSafe had attended and released the scene the Accused hired a truck with a Hiab attachment and used this to erect the remainder of the trusses at the Workplace. The cost of the Hiab was $250.00 for one day’s hire.
Subsequently, a qualified rigger was on similar jobs used until the Accused had obtained sufficient qualifications to perform this role (see charge 2).
The Accused also 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.
On 18 May 2016 the accused performed high risk work, namely rigging work, at the Workplace, without being the holder of an appropriate class of HRWL, namely rigging work, basic (RB).
The Accused climbed up a ladder and bolted steel structural members of the shed together after operating 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, clause 4 and 5 of the OSH Regulations.
The Accused held a High Risk Work Licence for class LF (forklift operations) and WP (elevated work platform) but not for class RB (rigging work, basic) as required.
After the incident involving the Victim, the Accused, obtained a HRWL to enable himself to perform advanced rigging work. This was at a cost of $1,100.00 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 $100,000 for Charge 1 and a fine of $2,500 for charge 2. No order for costs.
|Court||Magistrates Court of Western Australia - Esperance/Perth|
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