Prosecution Details

Being a Principal that engaged a contractor to carry out work for it, that work being in the course of GBI Sales Proprietary Limited's trade or business, failed to provide and maintain, so far as practicable, a working environment in which the contractor was not exposed to hazards, being matters over which the Principal had the capacity to exercise control, and by that failure caused the death of the contractor; contrary to section 23D, 19(1) and 19A(2) of the Occupational Safety and Health Act 1984.

The accused operates a business engaged in the wholesale distribution of electronic products out of premises at Belmont. The accused employed a number of people.

In January 2005 the accused received, stored and despatched electronic products from part of a warehouse located at the premises in Belmont. The part of the warehouse used by the accused was fenced off and was known as the Caged Area. The Caged Area contained rows of steel shelving on which electronic products were stored. The top shelf of the steel shelving was approximately 4.4 metres off the ground. In order to place electronic products on the shelving and retrieve them from the shelving, employees of the accused used one of two elevated work platforms known as 'Order Pickers' available for use by the accused's employees in the Caged Area.

Order Pickers are capable of forward and backward movement as well as elevation of the tynes of the Order Picker. When the tynes of an Order Picker are elevated, the operator, standing on the operator platform, is also elevated. The operator platform has edge protection on 3 sides. The Order Pickers available for use in the Caged Area also had an inbuilt harness and lanyard attached to the Order Pickers meant to be worn by the operator at all times. The Order Pickers used in the Caged Area had a wooden pallet attached to the tynes of the Order Picker that served as a platform on which to raise and lower boxes of electronic products. Warnings expressed at the relevant time in the Manufacturer's Instructions for the Order Pickers included the requirement for the operator to wear the harness at all times, and to 'never allow passengers on the Order Picker'. At the relevant time the accused did not have the Manufacturer's Instructions for the two Order Pickers available to it's employees at the workplace.

Prior to 20 January 2005 the accused required all of its employees that operated the Order Pickers to hold a certificate of competency for the operation of industrial lift trucks and had provided some training to employees in the use of the Order Pickers. The accused did not have any procedure in place prohibiting the lifting of Passengers on the Order Pickers. Prior to 20 January 2005 there was a practice within the Caged Area that when the accused's employees needed to place or retrieve a heavy item, such as an oven (usually stacked 3 ovens high - ie 1.5m) from the shelving or from a stack of items, two employees would be elevated on the Order Picker (one of whom would operate the Order Picker) so that there would be two persons to lift the heavy item to move it onto or off the pallet attached to the tynes of the Order Picker. When this occurred, generally one of the employees would wear the harness and lanyard attached to the Order Picker, and the other employee would use no fall restraint system.

Prior to 20 January 2005 an additional warehouse was built at the premises and it was intended that the accused would at some point move its storage of electronic products from the Caged Area to this new warehouse. On or about 10 January 2005 the accused engaged a contractor to perform work related to the installation of security in the new warehouse. Part of that work involved a need for the contractor to access roof trusses and the top level of shelving in the Caged Area in order to install security cabling. The roof trusses were approximately 6m above the ground in the Caged Area. In accordance with the contract,the contractor attended the Caged Area on 20 January 2005 accompanied by his son whom the contractor had engaged to assist him in the performance of the contract. In order to access the roof trusses in the Caged Area the contractor arranged for an elevated work platform known as a 'Cherry Picker' to be delivered to the premises. The Cherry Picker had a work platform on which a person could stand that was entirely surrounded by edge protection.

When the contractors arrived on 20 January 2005 they introduced themselves to the supervisor in the Caged Area, who offered them assistance if required. The supervisor then advised the employees of the accused working in the Caged Area on that day that contractors would be performing electrical work in the Caged Area and that the employees were to assist the contractors, including with the use of equipment if required. GBI owned two order pickers for use in the Caged Area, being a red order picker and a cream order picker. The supervisor informed the contractors that GBI's cream order picker was the only one that could reach the height of the purlins in the roof of the warehouse and made them aware that the GBI order pickers were each fitted with a safety harness. However, he did not give them any direct instruction regarding their use.

On the comemncement of work in the Caged Area the contractor and his son found that the Cherry Picker was slow and difficult to manoeuvre in the Caged Area due to its size. An employee of the accused was requested by the son, and agreed, to assist the contractors by using one of the Order Pickers. In the morning of 20 January 2005 the accused's employee operated an Order Picker to elevate the son up to the height of the roof trusses. The employee ensured that the son wore the Order Picker's safety harness when the employee operated the Order Picker. There was no man cage or other approved passenger-carrying platform attached to the Order Picker at that time.

While the contractor's son was elevated on the Order Picker the Managing Director of the accused walked past the Order Picker and was greeted by the son. The Managing Director believes that the son was wearing the Order Picker's safety harness at that time. The Managing Director did not, however, make any comment in relation to the son being elevated as a passenger.

At about 1 pm on 20 January 2005 the contractor requested the supervisor to elevate him on the Order Picker so that he could retrieve some cabling from the top shelf of the steel racking, in a part of the Caged Area where the top shelf was approximately 4.4 metres above the ground. The supervisor operated the Order Picker while the contractor stood on the pallet attached to the tynes of the Order Picker. Neither the supervisor nor the contractor used the harness and lanyard attached to the Order Picker, or any other kind of fall restraint device. After the contractor had retrieved the cabling the supervisor commenced lowering the tynes and moving the Order Picker forwards. During that manoeuvre the contractor fell from the Order Picker landing on his neck on the concrete ground below. The contractor was taken to hospital where he died 2 days later due to the injury incurred in the fall (dislocated cervical spine fracture).

The accused pleaded guilty.

Convicted