|Offender||CDM Hydraulics Pty Ltd (ACN:154 811 319)|
|Charge||Charge Number||Offence Date||Date Convicted||Regulation||Section||Penalty Provision||Penalty Imposed||Date Sentenced|
|1||KR1038/2022||10/10/2019||18th November 2022||19(1) 19A(2)||3A(3)(b)(i)||$375,000.00||7th December 2022|
|Description of Breach(es)||
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 serious harm to an employee.
CDM is a company that carries on a business specialising in hydraulic repairs, installations and rebuilds as well as mechanical repairs on heavy earthmoving equipment. It has a sole director, Clinton Morey, who operates out of 110 Pardalote Close Kununarra (Workplace). While CDM operates out of the Workplace, the company primarily provides an onsite service, which means only a small proportion of CDM’s jobs are carried out at the Workplace. CDM employs two staff that carry on a mobile on-site service out of Halls Creek. CDM also employs a part time office person to look after administration.
The victim commenced work with CDM on Tuesday, 8 October 2019. He was employed on a trial basis with the potential to become Clinton Morey’s trade assistant after asking Clinton Morey if there was any work available.
At the time, the victim was 19 years old. He had experience working on cattle stations and had some experience working on heavy machinery, but he did not hold a high risk work licence that would allow him to operate a forklift.
The victim was not given any induction. He did not sign any paperwork when he started working. Clinton Morey was waiting for the Friday, when CDM’s office person would come in to complete paperwork for the victim’s employment.
When the victim started work with CDM, Clinton Morey did not know what his abilities were. On the first day of his employment, the victim’s tasks were restricted to emptying rubbish bins. On the second day of his employment, he assisted Clinton Morey to repair hydraulics on a prime mover. Clinton Morey observed the victim and thought that he was a capable person.
On 10 October 2019, the victim’s third day working for CDM, he arrived at work at 6:30 am. Upon arrival, he cleared some ground towards the rear of the yard of the Workplace so he could assemble pallet racking after being requested to do this by Clinton Morey earlier in the week.
A short time later, Clinton Morey spoke with the victim about a job that CDM would be carrying out, which involved removing a steering ram from a forklift.
Clinton Morey and the victim discussed the job of removing the steering ram while driving to collect the forklift. The task required access to the underside of the forklift, so Clinton Morey made inquiries at two businesses to see if they could use a hoist to lift the forklift. Neither of the businesses had an appropriate size hoist, so Clinton Morey devised an alternative means of gaining access underneath the forklift.
Clinton Morey advised the victim to place two loading ramps onto the rear of a Mitsubishi truck that was at the Workplace and to reverse the forklift onto the ramps to enable sufficient space underneath the forklift to remove the steering ram. They then drove to the premises where the forklift was located. The victim checked the forklift’s oil and water. The victim then drove the forklift back to the Workplace, despite not holding a high risk work licence required to operate a forklift. Prior to driving the forklift, the victim checked that the lights, brakes, and park brake were working. He did not see an owner’s manual or log book with the forklift.
After returning to the Workplace, the victim set the ramps up on the back of the Mitsubishi truck and reversed the forklift onto the ramps as instructed by Clinton Morey. The ramps were approximately 2.5 metres long and the highest point, where the ramps were attached to the back of the truck, was approximately 1 metre high.
Once the forklift was on the ramps, the victim applied the handbrake, put the forklift in gear and lowered the tines of the forklift into the ground to stop it rolling forward. The victim had never previously attempted to remove a steering ram from a forklift while it was on ramps. He got underneath the forklift and attempted to remove the steering ram. Clinton Morey was at the Workplace and was aware that the victim was working underneath the forklift and came over to check on the victim.
The victim was having trouble removing the steering ram so Clinton Morey sought to help him. Clinton Morey stood on one of the ramps and attempted to access the steering ram from a different angle. He attempted to lift the hood on the forklift but was unable to do so because of the position of the gas bottle. Clinton Morey shuffled along the ramp to move the gas bottle out of the way.
At approximately 11:57am, as Clinton Morey shuffled along the ramp to move the gas bottle, he noticed the forklift starting to roll down the ramps. He jumped off and yelled at the victim to get out. The victim was not able to get out of the way of the forklift. The counterweight of the forklift came down on his head causing serious and life threatening injuries.
Clinton contacted emergency services. An ambulance took the victim to Kununurra hospital and he was then transferred to Royal Perth Hospital by the Royal Flying Doctor.
The victim suffered traumatic head injuries with multiple fractures. His diagnosis on discharge from Royal Perth Hospital were:
a. Bilateral fractures of the temporal bone.
b. Bilateral six cranial nerve injuries.
c. Left sided fifth cranial nerve injury.
d. Right sided facial nerve injury.
e. Left sided ocular motor nerve injury.
Since the incident, the victim l has been regularly seeing doctors and specialists. He has suffered from Strabismus, which causes double vision and loss of depth perception. His left eye will not rotate which results in neck pain as he must constantly turn his head to compensate. He has been able to obtain a licence to drive heavy vehicles. However, the licence is subject to restriction requiring that he be accompanied by another person. His injuries also affected his ability to masticate and consume foods. While there has been some improvement, his diet has been restricted such that he cannot consume certain types of foods and other foods can only be consumed with the addition of moisture due to nerve damage. This impairment is permanent. He also has issues with memory and processing skills.
Reasonably practicable measures
It was reasonably practicable for CDM to take the following measures to ensure that its employees were not exposed to the hazard created by the rolling forklift:
a. follow the manufacturer’s instructions when carrying out maintenance or repair work on the forklift’s steering cylinder by using a jack to raise the rear of the forklift and then using blocks to hold the forklift in a raised position to allow access to the steering cylinder; and/or
b. secure the forklift in place when carrying out maintenance or repair work using external restrains such as wheels chocks, tie down straps, a secure winch rope or similar restraint; and/or
c. use forklift ramps in combination with wheel chocks that would allow a person carrying out maintenance or repair work on the forklift to access the steering cylinder without creating a tendency for the forklift to roll.
The offender plead guilty at the first instance and was convicted on 18 November 2022. On 7 December 2022 the Magistrate fined the offender $375,000 and ordered costs $4456.30 (costs global with director’s offence)
|Court||Magistrates Court of Western Australia - Kununurra|
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