Truck Driver Fatality at Client Site Results in Fine, Undertaking

Truck Driver Fatality at Client Site Results in Fine, Undertaking

Industrial Relations E-Alert - Issue 12 (2021)

The 2017 death of a truck driver has been investigated by SafeWork NSW and determined by the NSW District Court. Findings of the criminal case shed light on the safety expectations held by the courts when loading, unloading and establishing traffic management plans.

Background

In December 2017, MLA Logistics Pty Ltd truck driver Brian Piper was struck by a pack of timber that fell off the tray of his truck while a Campbelltown forklift operator unloaded the truck at Campbelltown's premises. He suffered a large laceration to his scalp, leg and rib fractures, collapsed lungs, and severe pelvic injuries, before dying from cardiac arrest caused by his extensive head injuries.

Piper was delivering timber packs supplied by manufacturer Wesbeam Pty Ltd, and his vehicle was overloaded. Wesbeam workers had loaded the truck in an unusual and unsafe manner, with large packs stacked on top of smaller ones and multiple packs sitting at an angle, it heard. When the Campbelltown forklift operator started unloading the packs, weighing up to 800kg each, he did not confirm Piper's location. The raised forklift tines then dislodged the middle and top packs on the tray, causing one of them to fall on Piper, who was standing on the other side of the truck.

The incident occurred on Piper's first ever visit to the premises and he did not receive a site induction.

The Court case

Campbelltown pleaded guilty to exposing "other persons" to the risk of death or serious injury. Director Muhammad Jawad Khalid, pleaded guilty to failing to exercise due diligence to ensure Campbelltown complied with its safety duties.

NSW District Court Judge Scotting considered that the premises had a nominated area for trucks to park and unload, and a waiting area for truck drivers, but this did not amount to a designated exclusion zone within the meaning of the Australian Standard for safely loading and unloading trucks and establishing traffic management plans. Piper was also not directed to go to any specific area while his truck was being unloaded.

Judge Scotting also considered that Mr Khalid did not ensure Campbelltown had available to it, and utilised, sufficient resources to ensure that each forklift operator had available to them an allocated spotter to assist with unloading. There was no documented process or written safe work procedure for the unloading of trucks at the premises. The judge also considered that Campbelltown’s informal systems, applied ad hoc at the site, were insufficient to eliminate or adequately minimise the risk associated with loads falling from trucks and that Campbelltown had taken inadequate steps to identify the risk and respond to it in a documented and systematic way.

He lastly considered that while the actual risk to Mr Piper was contributed to by others, as the timber was loaded onto Mr Piper's truck in an unsafe way by Wesbeam's workers, if Campbelltown had implemented the appropriate control measures, all risks posed to Mr Piper could have been eliminated.

The Decision

Judge Scotting found the appropriate fine for Campbelltown was $100,000, before reducing this by 25 per cent for its guilty plea. He ordered Khalid to enter into a WHS undertaking to not commit another WHS offence, but did not impose a fine because of his lack of capacity to pay one.

In fining Campbelltown Hardware Pty Ltd $75,000, and ordering its director to enter a WHS undertaking, Judge Scotting said Campbelltown could have eliminated the relevant risks created by the other company by implementing appropriate control measures. In determining the sentences, Judge Scotting found Campbelltown and Khalid responded to the incident by taking "extensive steps" to make Campbelltown's activities "significantly safer", showing they had good prospects of rehabilitation.

Campbelltown implemented and trained workers in new safe systems of work based on the Australian Standard, and implemented monthly toolbox meetings where workers were asked questions on their knowledge of the system and provided feedback on their experience of implementing it. They also developed in-house WHS training videos that were updated regularly and used to induct new workers, and introduced a QR code incident reporting system and a forklift operator daily checklist mobile app.

SafeWork NSW v Campbelltown Hardware Pty Ltd and Khalid [2021] NSWDC 217 (31 May 2021)
 
IR Update modified from original OHS Alert article (3 June 2021)