In yet another decision resulting from a tragic workplace safety incident, an employer has been fined $375,000 after one of its workers was fatally crushed by a turf harvester being driven by a co-worker.
In SafeWork NSW v Turfco Australia Pty Ltd [2018] NSWDC 191, the Court heard that, at the time of the incident, Turfco had in place a ‘hop-off’ system used by its workers that was contrary to its own operator’s manual.
Turfco is engaged in the growing, harvesting and selling of turf. At the time of the incident, Turfco permitted workers to use a ‘hop-off’ system when operating a turf harvesting tractor in the course of their duties. The turf harvesting tractor operated using a side attachment that cut, rolled and stacked the turf. The hop-off system was a two-person operation which involved the driver of the tractor leaving the driver’s seat and hopping on to the turf harvester attachment to assist a “turf stacker” – a worker who would stand on an open-edge side platform at the rear of the harvester attachment. Once the job was near completion, the driver would hop off the harvester and back into the driver’s seat where he would then reverse the tractor into the unloading points.
In December 2014, a 19-year old worker was standing on the rear platform whilst the tractor was reversing and was therefore directly exposed to the pathway of the reversing tractor. Unfortunately, the worker fell into the pathway of the reversing tractor and the driver did not realise until the vehicle had crushed the worker to death.
In the proceedings, Turfco pleaded guilty to breaching its health and safety duty and thereby exposing the worker to a risk of death or serious injury contrary to section 32 of the Work Health and Safety Act 2011 (NSW).
In determining the penalty, the Court considered a number of factors. Of particular importance, it noted the “significant objective gravity” of the employer’s hop-off system. Whilst the risk of injury was obvious, Turfco had implemented a system that was not only unnecessary and unsafe, it was also contrary to its own operator’s manual which specifically stated that:
In addition to this, it was discovered that neither the driver nor the turf stacker was trained in the contents of the operator’s manual let alone made aware of its existence despite signage next to the driver’s seat which read “Caution – avoid injuries, read operator’s manual before operating machinery”.
The Court also considered mitigating factors including the remorse and extensive remedial steps taken by Turfco subsequent to the fatality. This included opening the site up to the worker’s family and friends for commemoration and contributing substantial amounts to the family’s funeral and personal expenses, as well as an extensive reconfiguration of its WHS systems. In this regard, Turfco had:
The Court issued a penalty of $500,000 (one-third of the maximum penalty) and discounted this by 25% to account for Turfco’s guilty plea.
Lessons for employers
In this case, the employer’s failure to implement and enforce the existing safety systems and procedures it already had at its disposal resulted in tragic consequences.
It is a lesson to employers and workplaces generally that the mere existence of signage, manuals and procedures must go hand in hand with (and may even count against a PCBU in some cases) making sure workers are made aware that they exist and are trained in their contents.
The remedial steps taken by Turfco are good examples of the things that PCBUs should already be doing in the workplace – in particular, ensuring that workers are made aware of and regularly trained in the contents of WHS policies and procedures.
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