$350k fine for crushing teenage worker to death

$350k fine for crushing teenage worker to death

By Jim Wilson on 9 August 2018 A company has been convicted and fined $375,000 for a health and safety offence after its safety failures caused a teenage worker to be crushed to death.

19 year old Blaine Rozs died after his chest was crushed when he was run over by a four-tonne turf harvester. Mr Rozs was standing on a side platform of the harvester, which was being operated in reverse, when he disappeared from view. The driver immediately stopped the harvester and alighted into the field to check on Mr Rozs.

However, he could only see Mr Rozs’ arm protruding from underneath the harvester.

Mr Rosz was dead.

Facts and background


Turfco Australia is a company that conducts a business growing, harvesting and selling turf. It operated a turf harvesting machine that was composed of a tractor with a harvester unit mounted on one side. The harvester unit cut slabs of turf, which were then fed onto a conveyor and manually stacked on a pallet. It was a two man operation – one driver and one turf stacker. The turf stacker stacked the slabs while standing on a side platform at the rear of the harvester. 

The side platform was behind the driver and it had an exposed edge without a physical barrier to prevent the stacker from falling. Reversing the machine exposed the turf stacker to risk of falling off the platform to the ground directly in the path of the machine. 

The machine as a whole moved at about two kilometres an hour allowing the driver to alight from the cabin while it was in motion and walk back to the platform to help with stacking work. The driver could return to the seat at any time to stop the machine. This was known as the hop-off system.

The operator’s manual directed drivers never to get on or off a moving machine, which the hop-off system contravened. It also stated that a separate vehicle should be used to transport harvested turf to an unloading point. Reversing the machine during operation was not recommended although it was not expressly forbidden; it was necessary to reverse the machine from time to time, for example, to change direction. There was also a warning next to the driver’s seat warning against unsafe operation and instructing drivers to read the operating manual.

The company did not inform Mr Rosz or the driver about the contents of the operator’s manual and it did not train or instruct them. The company logistics manager had never read the manual and was not aware of the recommended method of harvesting turf. The farm manager, who used the manual for maintenance purposes, did not consider there was any need to modify the harvesting system. 

On 01 December 2014, Mr Rosz and the driver were sent out to harvest turf, which, that day, was damp and bumpy. Accordingly, a “slight bouncing” rhythm was induced into the operation of the machine. During harvesting operations that day the machine was driven up to 150m in reverse to deliver cut turf to the unloading point. 

At approximately 07:07am that morning, Mr Rosz fell off the platform into the path of the moving machine, which then crushed him to death.

Following the incident, the company’s general manager expressed remorse and contrition. She also accepted responsibility on behalf of the company. The company and its founders paid thousands of dollars to the family for its funeral and other expenses. It also arranged for counselling for the family members and for staff. The company allowed Mr Rozs’ friends and family to access the accident site to commemorate his life. 

The company upgraded the machine and changed the operating procedures to make harvesting safer but then later replaced the machine with an inherently safer one-man-operated semi-automated machine.  The company now holds documented “tool box” meetings so that staff can discuss safety concerns and it also holds regular work health and safety management meetings. 

It has also engaged the services of a consulting firm to develop, audit and document its health and safety systems including staff training, standard operating procedures and site inspections. It has also informed the national trade body of the accident and helped that trade body to develop work safety compliance guidelines, resources and certification standards. 

The law


The company subsequently pleaded guilty to an offence under the Work Health and Safety Act 2011   (Cth).

Section 19 imposes a duty of care on persons conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers and other people. Exposing a person to a risk of death while under a health and safety duty is a criminal offence punishable, in the case of companies, by a fine of up to $1.5m. 

Considerations


As the company pleaded guilty to the offence, considerations revolved around the appropriate sentence to impose on the offending company while taking into account any aggravating and mitigating factors. 

The District Court of New South Wales considered that the case was objectively serious. There was no evidence that the offender considered the risk in advance or took any stops to control the risk. Reversing of the harvester for long distances was unnecessary and unsafe.

The risk to the turf stacker was “obvious” and the hop-off system used was contrary to the advice in the operator’s manual. There was no training despite warnings that were “clearly” displayed on the harvester. It was also held that there needed to be specific deterrence because the offending company continues to work in an industry that presents significant risk to the health and safety of workers.  

The NSW District Court also took into account the harm caused to the community and the harm caused to Mr Rozs’ family was evidence of that harm. 

“There were simple steps which the offender could have implemented at no cost to eliminate the risk… the available steps would not have caused any inconvenience to the offender. The death of Mr Rozs was tragic. He was 19 years of age… The incident caused the premature death of a young man and has had profound effects on his family members, particularly his mother,” the court said. 

In mitigation, the court noted that the company did not have any previous convictions and had taken “considerable” steps to improve its safety systems since the accident. The company expressed remorse and provided financial support to the family. The company co-operated with Safe Work NSW and entered an early guilty plea. 

Decision


The court convicted the company and imposed a fine of $500,000 but gave a 25% discount for an early guilty plea. The total fine payable was therefore $375,000.

The bottom line: Moving machinery is inherently dangerous. Great care must be taken around it. Careful deliberation should take place before any course of action that would deviate from recommended safety procedures and systems is carried out. Any platforms upon which people stand while a machine is in motion should have robust physical barriers and edge protection. If they do not, then strong consideration such be given suspending use of the machine until barriers can be installed. If retrofitting is not possible then consideration should be given to disposing of the machine. Thorough training for all operators of moving machinery, and those who may come into the vicinity, should be mandatory. 

Read the judgment


SafeWork NSW v Turfco Australia Pty Ltd [2018] NSWDC 191 (16 July 2018) 

 

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