Company fined $90k for smashing worker's leg with forklift

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Company fined $90k for smashing worker's leg with forklift

A company has been convicted of a health and safety offence and fined $90,000 after one of its forklifts hit and injured an employee of independent contractor.

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A company has been convicted of a health and safety offence and fined $90,000 after one of its forklifts hit and injured an employee of independent contractor. 

Ashley Thomas Mahoney sustained a fracture to the lower part of his left leg; he was hospitalised for four days at the Royal Adelaide Hospital and required surgery. Mr Mahoney also has ongoing medical problems with his leg and ankle. He is unable to run properly. 

Facts and background


Mr Mahoney was working as a labourer for a sole trader who contracted with third parties for the packing and unpacking of shipping containers. Pro-Pac Packaging (Aust) (PPPA) had engaged the sole trader for some years.

On 01 June 2015, Mr Mahoney had been unpacking a shipping container for several hours at PPPA’s site at Cavan. Goods were unpacked from the container, were put onto a pallet and then shrink-wrapped by a machine. After some time a forklift would arrive, pick up the pallet, and then transport it to a nearby warehouse.

Eyewitness accounts in the run-up to the accident differ, but it is clear that Mr Mahoney was standing next to the wrapping machine and had taken a few steps before he was struck by the reversing forklift.

Mr Mahoney was then evacuated by ambulance to hospital. 

PPPA acquired the Cavan site from a third party in April 2012. A director of PPPA carried out a WHS assessment. As there were extensive failures, he concluded that the site’s systems were inadequate. A dedicated WHS manager was appointed to bring the site up to PPPA standards and was due to report to the PPPA director. 

However, the WHS manager did not properly implement the traffic management systems while the PPPA director incorrectly assumed that the site had been brought up to PPPA standards. The WHS manager left PPPA two weeks before the incident took place.

There was “clear evidence” that the company had identified the risk of a pedestrian/forklift collision. The site also lacked a traffic management plan and marked walkways.

There were also a lack of written instructions that labour hire workers or regular visitors would be inducted as regular employees were. 

After the incident, the company complied with the requests and directives of SafeWork SA inspectors. Calls were made from the company to check on Mr Mahoney and counselling was offered to all staff. The incident was discussed at board level and an unreserved apology was made to Mr Mahoney. The company has also since made a number of improvements to its WHS systems. 

The law


PPPA was charged, and pleaded guilty to, committing a health and safety offence under the Work Health and Safety Act 2012 (SA)

Section 19 of the Work Health and Safety Act 2012 (SA)  imposes a primary duty of care on a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers. A failure to comply with a health and safety duty that exposes a person to a risk of injury is a criminal offence under s32. Companies that commit such an offence can be fined up to $1.5m.

It was alleged in the charge sheet that PPPA had committed a health and safety offence because it did not provide a safe system of work. PPPA should have forbidden the use of forklifts unless either

a) safe, pedestrian-only walkways had been set up by the use of kerbs, barriers or other clear markings; or 

b) a system had been established, involving marked exclusion zones for pedestrians, which would have prevented a forklift from operating in an area at the same time that a pedestrian had access.

Considerations


As the company had pleaded guilty, considerations revolved around what level of sentence to impose. 

Mitigating factors included the fact that it was a first offence for the company, an early guilty plea was made and systems were implemented to make it unlikely that there would be a future pedestrian/forklift accident. The fact that the company had expressed remorse and contrition was noted. 

The South Australian Employment Tribunal also commented: “If proper exclusion zones and traffic management systems were in place and Mr Mahoney had been properly inducted in those systems then his actions of going behind a reversing forklift may well have not amounted to an offence.”

Decision


The South Australian Employment Tribunal convicted the company and imposed a fine of $150,000 but gave a 40% discount for the various mitigating factors. Accordingly, the fine payable was $90,000. The company was also ordered to pay several hundred dollars of costs, fees and a levy giving a total amount payable of $91,217. 

The bottom line: moving machinery, in this case forklifts, continue to pose a severe danger to pedestrians. Senior managers ought to ensure that people and machinery are segregated. There are guides and codes of practice that show how to do this such as the Safe Work Australia General Guide for Workplace Traffic Management

Where physical segregation is not possible then managers must ensure that there are pedestrian only walkways and forklift only workspaces, which are clearly marked. All people – visitors, labour hire, casual workers, employees – who may possibly be physically present in or near moving plant and machinery must be inducted properly. 

Finally, this case highlights the dangers of assuming that WHS systems and procedures have been put into place and are being followed. Don’t assume – check. 

Further reading


Workplace traffic management guidance material by SafeWork Australia
 

See the related case 


Dini Soulio v Laszlo Bajtek [2018] SAET 42 (2 March 2018)
 

Read the judgment


Soulio v Bajtek and Pro-Pac Packaging (Aust) Pty Ltd [2018] SAET 123 (13 July 2018) 
 
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