OHS Alert-PCBU fined $800K over death, dangerous work performed in poor lighting without hi-vis vests
Article from OHS Alert 26/03/2024
An employer has been fined $800,000 for WHS breaches, after a designated work site migrated onto a dangerous stretch of road and a worker was killed by a vehicle driven by a colleague.
Scott's Refrigerated Logistics Pty Ltd (SRL) failed to address the fact that up to 11 trucks at a time were swapping trailers on the cramped stretch of road close to fast traffic, NSW District Court Judge Wendy Strathdee found.
Workers had reported that the process was unsafe, she found.
The Judge found the PCBU guilty of breaching sections 19 ("Primary duty of care") and 32 ("Failure to comply with health and safety duty–Category 2") of the NSW Work Health and Safety Act 2011, and its offence was objectively serious.
SRL line haul driver Darren Bowden was killed in July 2021, when he was hit by a truck on a section of the Macleay Valley Way in Clybucca, NSW while swapping trailers with another SRL driver.
SRL had designated a BP service station as the Clybucca changeover site (CCS), but when the service station shut in 2016 drivers began swapping trailers on the shoulder of the adjacent road.
SRL was aware of the practice but continued to direct workers to conduct changeovers in the area.
About 140 changeovers were conducted on this stretch of road each week. The area was poorly lit, in poor condition and lacked space, so that some trucks needed to partially park on the road, Judge Strathdee heard.
"The evidence establishes that to undertake the changeover task, due to the lack of space, the drivers were effectively standing on the active lane of the road," she said.
Bowden was struck by a truck being driven by a co-worker, who had previously complained that the CCS was crowded and unsafe, and was travelling past the CCS to an alternative location for a changeover when the incident occurred.
After SafeWork NSW charged SRL with breaching the WHS Act, the PCBU was put into external administration and the liquidators did not appear at the trial. The case proceeded on the basis that the PCBU had entered a plea of not guilty.
Judge Strathdee accepted SafeWork's submission that SRL's omissions were a "substantial or significant cause" of workers being exposed to the risk of serious injury or death from being struck by oncoming vehicles while performing changeovers at the site.
"Given the area where the incident occurred was near oncoming traffic in a 100km speed zone, and the task workers were required to undertake involved working either on the road or very close to the road, it is reasonably foreseeable that workers may be exposed to the risk of being struck by a moving vehicle while conducting a changeover at the CCS," she said.
"This is especially so in circumstances where there was no designated location or facilities for the task to be undertaken in this area, or procedure as to how to assess a safe site."
SafeWork had alleged that SRL should have performed a risk assessment at the site that took into account: the speed, volume and proximity of traffic at the location; lighting and visibility; the condition of the road surface; and the location's size.
The regulator found the PCBU should have enforced a safe system of work for the changeover, provided workers with adequate information, training and instruction on the risk of being struck during changeovers, and ensured they wore adequate high-visibility clothing at changeover locations.
The Judge heard that while SRL policies required line haul drivers to be provided with and wear approved high-visibility vests, some workers were not provided with these vests and others complied with the rule "to varying degrees".
Bowden was not wearing a high-visibility vest or shirt when he was struck, she heard.
Judge Strathdee found SafeWork's allegations were proven beyond reasonable doubt.
In sentencing SRL, she said the relevant risk in was "glaringly" foreseeable and known to SRL, having been raised by workers who used the CCS.
"The risk of being struck by mobile plant or vehicular traffic on the road is obvious and should and could have been readily anticipated by SRL," she said. "This was a fundamental part of SRL's business operations and there were many movements of heavy vehicles at the CCS."
She convicted SRL and ordered it to pay costs, in addition to the $800,000 fine.
SafeWork NSW v Scott's Refrigerated Logistics Pty Ltd [2024] NSWDC 86 (22 March 2024)
Resource Links:
Managing Risks - https://www.worksafe.qld.gov.au/safety-and-prevention/creating-safe-work/managing-risks
When should I manage risks?
Risk management is an ongoing process. You should review risks on a regular basis, or whenever there are changes in the way your business works. Triggers for risk management are:
- starting or buying a business
- changing work practices, procedures or the work environment
- buying new or used equipment
- using new substances
- planning to improve productivity or reduce costs
- responding to new information about workplace risks
- responding to workplace incidents (even if they have caused no injury)
- dealing with concerns raised by workers, health and safety representatives or others at the workplace
- as required by the Work Health and Safety Regulation for specific hazards.
How do I manage risks in my business?
To protect your workers from injury, all Queensland employers should follow a four-step risk management process. This will help you identify hazards, assess risks, find ways to control those risks, and then make sure those controls keep working.
Following this simple process will help your business meet its responsibilities under work health and safety laws.
