Prosecution Details

Being an employee, failed to take reasonable care to avoid adversely affecting the safety or health of any other person through any act or omission at work.

The Accused was employed by a garden centre company (the company) as a machine operator.

Workplace

The company and another business engage in work at a recycling facility located at Lot 5, 190 Flynn Drive, Neerabup, Western Australia (Recycling Facility). The Recycling Facility takes green waste and some building waste and turns it into mulch and gardening supplies.

Inside the Recycling Facility is a weighbridge which is accessed by local councils and members of the public to weigh vehicles and the loads on the vehicles (Weighbridge).

Accused’s Employment and Work History

The Accused was an employee of the company and 49 years old at the time of the incident.  He had been working for the company at the Recycling Facility for about three months prior to the incident operating machinery, including excavators.

Part of the Accused’s usual duties was to operate an excavator to perform tasks such as moving garden and building waste.

The Accused had had at least five years’ of experience operating heavy machinery, including excavators, cranes and mobile plant. The Accused holds various licences to perform high risk work, including a licence to operate a slewing mobile crane of up to and including 60 tonnes.

Work being performed at the time of the incident

The injured person is a self-employed diesel mechanic.

At about 8:30am on 11 March 2019, a consultant from the company telephoned the victim and asked him to attend the Recycling Facility to perform cutting of steel using an oxyacetylene torch to burn through the steel (Gas Cutting Work). The gas cutting work involved cutting the existing bolt holes in various steel plates that attach to the Weighbridge to enlarge the holes to ensure that the steel plates fitted into the Weighbridge.

The incident

On 11 March 2019, the victim arrived at the Weighbridge at approximately 9:30am.

The Accused was operating a 14 tonne Doosan Model DX140LCR excavator (Excavator) to lift the steel plates via a magnet attached to the boom of the Excavator and move the steel plates into position on the Weighbridge for the victim to undertake gas cutting work.

When the victim was performing Gas Cutting Work, the Accused was sitting inside the cab of the Excavator.

The victim hand signalled to the Accused to engage the red safety lock lever beside the operator’s seat on the Excavator (Safety Lock Lever) when the victim was gas cutting the first two steel plates. The Accused engaged the Safety Lock Lever when the victim was gas cutting the first two steel plates.

Prior to the victim performing gas cutting work on the fourth steel plate, the Accused failed to engage the Safety Lock Lever.

The Accused turned to reach for his radio and his shirt hooked onto the slew lever of the Excavator, thereby engaging the control mechanism and causing the Excavator’s boom to move suddenly. The control mechanism involves a hydraulic system and is very sensitive, thus there is little to no lag time.

As a result of the Excavator’s boom suddenly moving, the victim landed on the cross-beam within the steel frame between the plates on the Weighbridge.

The victim was hospitalised for five days at Joondalup Health Campus and sustained numerous injuries, including fractures to his pelvis, transverse process and sacrum, a wound on his back, superficial abrasions to his right cheek and lips and left parietal laceration.

Failure to take reasonable care

When engaged, the Safety Lock Lever ensures that the hydraulics of the Excavator do not work so the Excavator will not move even if the control mechanism of the Excavator is engaged.

By failing to engage the Safety Lock Lever while the victim was working within the slewing arc of the Excavator, the Accused has failed to take reasonable care not to adversely affect other persons.

Engaging the Safety Lock Lever was the most practical method of isolating the Excavator. However the Accused also could have engaged the emergency stop system or otherwise turned off the Excavator while the victim was working within its slewing arc, to prevent the victim from being injured.

Knowledge of the hazard

During an audio record of interview with WorkSafe Inspectors the Accused admitted that he should have, but did not, engage the Safety Lock Lever immediately prior the incident. The Accused admitted that there was no reason why he did not engage the Safety Lock Lever in order to isolate the machine.

The Accused knew the victim was within the danger zone of the Excavator and could be injured and was aware of the risk of death relating to someone being struck by the Excavator while within the danger zone of the Excavator.

Foreseeability of hazard

It is foreseeable that failing to engage the Safety Lock Lever of the Excavator when another person is working within its slewing arc could cause serious injury or death.

The foreseeability of the hazard is shown by the victim asking the Accused to engage the Safety Lock Lever by way of hand signals while he was performing Gas Cutting Work on the first two plates, which the Accused did.

Ease with which the hazard could be removed

The Accused admitted that the Safety Lock Lever is easy to operate and is located by the left hand side of the Excavator operator and that it is even easier to use than a handbrake. The Accused admitted that the Safety Lock Lever flicks and locks in and will not accidently fall down.

The Accused stopped working for the company as a result of the incident.

The Accused plead guilty at first mention 6 November 2020 and was convicted.  On 20 November 2020 the Magistrates fined the Accused $7,500 and ordered costs of $1000.00