Case

SafeWork NSW v Dongwha Timbers Pty Limited (2020)

Dongwha Timbers Pty Limited is a business in the lumber industry, which operates a timber sawmill and timber re-manufacturing facility in Bombala, NSW. Its product line operation plant and equipment include a tilt hoist on the satellite line infeed unit (the unit). During its operation, timber packs are loaded by forklift onto the unit. When they are loaded, each layer of the timber pack is separated by smaller pieces of wood called fillet sticks. Then the timber pack is moved towards and onto the tilt hoist by the satellite infeed chains. The tilt hoist is then used to lift the timber pack to separate the fillet sticks, which are automatically separated from the timber boards due to their smaller size.

On 27 July 2016, Mr Timothy Ross James Olsen was operating the unit when a fillet stick became jammed under the lift arms of the tilt hoist, which prevented the arms from lowering. Mr Olsen entered the restricted access area after turning off the tilt hoist and the unit. When Mr Olsen went in, the drive chains of the lift arms were slack, which meant that the lift arms could fall once the fillet stick, jammed under the arms, was dislodged, as the drive chains were not holding them in place. Using a shovel with his back to the tilt, Mr Olsen attempted to dislodge the fillet stick. When the fillet stick was dislodged, the lift arms dropped due to slack in the chains and struck Mr Olsen’s back, pushing him to the ground. As a result, Mr Olsen suffered serious injury, including dislocation of the left hip joint.

Judgment

The Court found Dongwha Timbers’ level of culpability to be in the mid-range for the following reasons:

• the risk of a worker being impacted by the tilt hoist arms when clearing or removing jammed timber from beneath the tilt hoist was obvious and foreseeable;
• the likelihood of the risk of a worker being struck by tilt arms falling as a result of dislodging a fillet stick was significant;
• there was potential for serious injury or death – Mr Olsen could easily have died or suffered catastrophic injury if he had been struck on the head or neck;
• there was no risk assessment undertaken for the task that Mr Olsen was performing;
• the company’s standard operating procedures should have referred to the fact that the tilt hoist arms could become slack and may fall to the horizontal position if an obstruction is removed; .there was little or no burden or inconvenience in conducting a risk assessment for the task that Mr Olsen was seeking to complete;
• the significant injury suffered by Mr Olsen was a manifestation of the risk;
• it would not have been a burden to formalise the undocumented informal procedure the company had in place for clearing jammed timber from the tilt hoist (which was that operators were to contact the maintenance crew and only maintenance personnel were to remove the jammed timber); and
• the company had a commitment to safety and a detailed (but incomplete) system of written safety documentation. The unwritten informal procedure was not followed on this occasion, and the absence of that procedure being put in writing and taught to the workers is an important factor in understanding why the risk existed and why the accident occurred.

Dongwha Timbers entered a guilty plea for failing to comply with its work health and safety duty under section 19 of the Work Health and Safety Act 2011, thereby exposing the worker to a risk of death or serious injury. The company was convicted and fined $120,000 but was reduced to $90,000 to reflect the guilty plea.

Lessons

In this case, the Court highlighted the importance of safety procedures being put in writing. It is insufficient for an employer to just have an unwritten informal procedure, regardless of whether it is often followed or not by the employees. An employer must make sure its work health and safety system in place is covering every foreseeable risk and is documented properly.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.