WorkSafe Victoria v Kalafatis Packing Pty Ltd (2018)

Facts

In 2015, an employee of Broadspectrum (Australia) Pty Ltd (Company) was on a worksite gathering materials from a rack that was located outdoors and had corroded over time. The activity resulted in the rack collapsing and the employee suffering a fatal head injury.

While it was found that the Company had a ‘conscientious and diligent’ record in its approach to workplace health and safety, the rack was mistakenly overlooked as a fixture that required specific safety monitoring and risk assessment.

Judgment

The Company was charged under section 32 of the NSW WHS Act for failing to comply with its duties under the Act. At the time of the incident, the deceased was working as a subcontractor for NWEC Pty Ltd. NWEC – a company that supplied the Company with skilled workers to which the latter supervised and provided scheduling.

The Company was responsible for maintaining and repairing the plant and structures on the compound where the incident took place under a contract with Qenos Pty Ltd.

The rack was found to have collapsed due to corrosion to base support beams. The rack did not meet the specified Australian Standards mainly due to insufficient drainage holes, a failure to proactively proof from corrosion by painting or galvanising the rack and a failure to recognise and act on the corroded condition of the rack.

It was found that the Company should have conducted a risk assessment of the rack and regularly inspected it. For this reason it was foreseeable that injury or death could result from the failure of the rack.

The Court found that there were readily available measures that would have removed the risk and this was supported by the corrective action taken by the Company directly after the incident.

In assessing the penalty, Deputy Chief Justice Kearns recognised that the Company had a strong health and safety record over an extended period. Further mitigating factors included new safety policies that had led to a decrease in workplace injuries, cooperation with the regulator and an early guilty plea, which resulted in a 25% discount
on the penalty imposed.

The Company was fined $240,000 and ordered to pay the prosecutor’s costs of $51,000.

Lessons

This case demonstrates that extra care needs to be taken when conditions are present that may lead to significant safety risks to arise incrementally over a long period. Organisations need to ensure that fixtures and equipment undergo regular safety examinations to ensure that they do not pose a risk to health and safety.

This case also exemplifies the importance of adopting Australian Standards in the supply, installation and maintenance of fixtures.

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.