Safe Work (NSW) v Tamex Transport Services P/L t/as Tamex (2016)

Facts

Mr Lever worked for Parry Bros as a semi-trailer driver and made deliveries to several depots. The incident occurred at the Beresfield depot which was owned and operated by Tamex Transport Services (Tamex). Mr Lever was standing at the rear of the depot, unloading the semi-trailer. A forklift operator assisted in the unloading process. Mr Lever stood within 2 metres of the forklift, which was removing a freight cage from the mezzanine level of the semi-trailer. The door of the cage became dislodged, fell and struck Mr Lever in the head.

Judgment

Tamex pleaded not guilty to a charge that it failed to comply with its health and safety duty: s 19(1) of the WHS Act (NSW). However, the Court found that Tamex was guilty for the following reasons:

• there were measures that could have been adopted to prevent the freight cage door being dislodged while in transit or being removed from the semi-trailer i.e. temporarily shrink wrapping the cage doors or using manufacturing chains/d-links to hold the door in place; and
• Tamex had failed to ensure clear definition and enforcement of pedestrian exclusions zones around forklifts.

With respect to preventative measures, the judge found that securing the freight cage doors was reasonably practicable and that the cost of implementing steps to eliminate the risk was not grossly disproportionate to the risk.

With respect to the pedestrian exclusion zones, the judge reasoned that even if the employees received training on preventative safety measures, Tamex failed to monitor the work processes to ensure that the systems were being followed. The Court considered that it was reasonably practicable for Tamex to undertake regular inspections of the premises to ensure that the system of work requiring the pedestrian exclusions zones and the securing of the cage doors was being implemented. This was because Tamex could undertake these inspections by continuing to conduct the workplace inspections procedures and by regularly reviewing the CCTV footage it had available to it.

Tamex will be sentenced later this year.

Lessons

While the employer in this case had safety systems in place, they were insufficient. Further, even where there are systems in place it is not enough to assume that the systems are being followed. It is necessary to use the resources available to your organisation to monitor compliance.

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.