Case law: $300,000 penalty after truck driver hit by object falling from forklift

By Jeff Salton on May 22nd, 2018
  1. Risk Management
  2. Workplace Safety


The case

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

Mr Lever worked for Parry Bros as a semi-trailer driver and made deliveries to several depots between 7.15pm and 3am each night. 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, who was bent over trying to dislodge a strap, was 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.

He suffered a depressed skull fracture and a traumatic brain injury, right-sided deafness, dental injuries and an injury to his lower back.

The 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, Judge Scotting 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.

Judge Scotting held that “The defendant failed to implement a safe system of work, particularly to take the reasonably practicable steps to implement the Traffic Management Plan and to secure the cage door. As a result of those failures, Mr Lever was standing in close proximity to the forklift and he was struck by the cage door.”

At sentencing in 2017, Judge Scotting, noted that the offender took immediate steps to improve its systems and has continued to refine and make further improvements to the system it adopted immediately after the incident. However, Judge Scotting, convicted and fined Tamex $220,000, plus $82,000 in prosecution costs.

Lessons for you

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.

If you need help devising or reviewing your traffic management plan, or other areas of your business’s health and safety policies and procedures, you can’t go past the Health & Safety Handbook.

Written in plain English by the health and safety experts at Holding Redlich, the Handbook has all the answers you need to the myriad health and safety challenges thrown your way each year.

Start by checking out the Traffic Management (T1) chapter and Plant Safety Management (P3) chapters right away – just two of the 70-plus chapters you’ll find in the Health & Safety Handbook.


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